Norman & Howarth [2003] FamCA 1284 (24 November 2003)

[2003] FamCA 1284

FAMILY LAW ACT 1975

of Senior counsel, instructed by Barkus Edwards Doolan (DX 11561 Sydney Downtown), appeared on behalf of the Applicant Husband.

of counsel, instructed by Hamish Cumming (DX 11659 Sydney Downtown), appeared on behalf of the Respondent Wife.

Catchwords: Application for permanent stay S79A

Legislation considered SS 79A, 81

Cases considered: Clifton v Stuart (1991) FLC 92-194, Bigg v Suzi (1998) FLC 92-799 at84,974, Lindon v The Cwth (No 2) [1996] HCA 14; (1996) 70 ALJR 541 at544, General Sheet Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR, Rogers v The Queen (1994) 181 CLR 251 at 255, Walton v Gardiner(1993) 177 CLR 379 at p392, Ferrall and McTaggart (trustees for Sapphire Trust) & Ors v Blyton [2000] FamCA 1442; (2000) FLC 93-054, High Court Rules Order 63 Rule 2, Anderson v Anderson [1999] FamCA 1026; (2000) FLC 93-016, Weiss v Weiss (unreported, Baker J, 22/03/96), Suiker and Suiker (1993) FLC 92-436 McIntyre and McIntyre (1994) FLC 92-468

1 The application for determination by me is contained in the response filed by the respondent husband on the 30th of October 2002. The order sought is in the following terms:

"That the proceedings comprised by the wife's application filed 30th April 2002 be permanently stayed."

2 An order for costs was also sought, however was not argued. I propose to adjourn that application for determination until after the outcome of the principal dispute is known to the parties.

3 The application of the wife filed the 30th of April 2003 seeks an order, inter alia, that the orders made by the court on the 13th of December 1988 be set aside pursuant to section 79A.

4 On the 21st of February 2003 the wife filed an affidavit in the proceedings.

5 In paragraph 4 of that affidavit she set out the principal matters upon which she was relying for the purpose of convincing the Court that the orders should be set aside under section 79A. Those matters can be summarised as follows:

1. That the orders provided a result for the wife which was manifestly inadequate.

2. That the wife had no knowledge of the husband's superannuation entitlements.

3. That at the time the consent orders were made the husband did not provide details of his financial circumstances to the court.

6 These grounds were stated somewhat differently by the wife's Counsel in her oral submissions before me. They are referred to later in these reasons.

7 In other evidence before the Court the wife seeks to establish that she received incompetent legal advice at the time the orders were made and says that would entitle her to have the orders set aside under section 79A.

8 The husband's application is based on a conclusion being reached by the court that to allow the wife to proceed with her application would amount to an abuse of process. His case is that the filing of the wife's application to set aside the orders of the 13th of December 1988, some 13 years after the orders were made, in the circumstances of this case, amounts to an abuse of process. He says that the prejudice flowing to the husband by the time lapse, is that documents and memories which the husband might have had available to him at an earlier time must be seen to have been lost to him. This effects the husband's ability to effectively oppose the wife's application.

9 The husband submitted that to allow the continuation of the proceedings would be unfair and unjustifiably oppressive to him.

10 The husband says that the Court has inherent jurisdiction to stay its own proceedings on grounds of abuse of process. It is submitted by him that this jurisdiction exists to administer justice with fairness and impartiality. It is submitted by the husband that it would be manifestly unfair to the husband to allow the litigation to continue. It is further said that it would bring the administration of justice into disrepute to allow the proceedings to continue.

11 The concern of the husband is that documentation and relevant memory must be presumed to have been lost since the 13th of December 1988. It is submitted that in such circumstances it is not possible for the husband to adequately defend the proceedings by calling evidence contrary to that relied on by the wife.

12 The wife submitted that for the husband to succeed with his application he can only rely upon evidence put before the Court by the wife. It was said that the husband cannot call evidence ( i.e.read affidavits filed in his case or tender documents) in support of the permanent stay application. The wife's position moved slightly on the last day of submission when Ms Knox submitted that it was permissible for the husband to call evidence in support of his case for abuse of process but not otherwise. In fairness this perceived apparent change in direction may have arisen because of my misunderstanding of her earlier submissions in the case.

13 It is put that to deny any citizen access to the Courts must be seen as a last resort in our society. Therefore the case for the stay must be clearly and adequately apparent to the Court.

14 On the last day of the hearing I prepared a List of Issues to be determined in the case and sought Counsels assistance in settling same. As a result the following issues were agreed as those to be determined in reaching a decision in the case:

1. Can the husband call evidence to support his application for a permanent stay?

2. Under what circumstances should the court exercise the discretion to grant a permanent stay?

(a) Has there been serious or undue delay by the wife in commencing the proceedings under section 79A?

(b)

Is the delay in all the circumstances unfairly burdensome, prejudicial or oppressive to the husband?

(c)

Ought the wife, in all the circumstances have instituted proceedings or given notice of the prospect of proceedings at an earlier point of time?

(d)

Would this have been likely to have ameliorated prejudice to the husband?

4. Is it necessary to prove that relevant documents or other evidence or recollections have been lost or is it only necessary to establish a reasonable presumption to this effect?

5. What relevant evidence might it be presumed has been lost to the husband occasioned by the delay of the wife?

6. What are the merits of the wife's section 79A application?

7. Is the delay in commencing the proceedings and the prejudice thus caused to the husband such that it would amount to an abuse of process to allow the case to continue?

15 On the 13th of December 1988 orders were made by consent between the parties. The orders were made by a Registrar of the Court in chambers.

16 The principal provisions of the orders require the husband to pay the wife the sum of $425,000. The wife owned 33 shares in Bhoe Pty Limited and the husband owned 66 shares in that company. The orders did not disturb that ownership. The recitals to the orders and the orders provided that the husband was to retain his interest in Norman Management Services Pty. Limited (hereafter called "NMS").

17 The wife retained her loan account of $122,952 and the husband retained his loan account of $356,988 in Bhoe Pty Limited (hereafter called "Bhoe").

18 The husband was to retain the former matrimonial home upon payment to the wife of the $425,000. The home was said to have a value of $1,000,000.

19 There was no specific mention of superannuation in the orders.

20 It seems the husband duly paid the wife the $425,000.

21 Thereafter the parties, who had been involved in the running of an employment agency, prior to the separation and the Court orders, continued to work together for a time.

22 The wife says that in 1989 the husband terminated her employment with Bhoe and as a consequence she learned for the first time that she had a superannuation entitlement in the Bhoe Staff Super Fund. She was paid $135,332. She also says she was unaware of a letter dated 8th January 1988 addressed to "Darrol & Kay" (the husband and the wife in these proceedings) which advised, inter alia, that the fund was an unallocated pension fund with assets at 30th of June of $307,642.

23 In 1993 the husband purchased the wife's shares in Bhoe for $1,193,154.

24 The wife notes in her affidavit that the husband did not provide a Statement of his financial circumstances to the Court at the time the orders were made.

25 In December of 1995 the wife says she became aware during proceedings relating to child support that the husband had superannuation entitlements with Bhoe Staff Superannuation Fund of $988,996 and $336,000 in Norman Management Services Super Fund. As far as I am aware, it is not suggested by the wife, that the husband had an interest of this value in either superannuation fund at the time of the consent orders being made. Further there still seems to be some confusion as to whether the contributions made to superannuation for the parties prior to the property orders were made to the Bhoe Pty Ltd Staff Superannuation Fund or to the Norman Management Services Super Fund. In any event there seems to be little consequence to the wife about these matters as her allegation is that she knew nothing of her own superannuation entitlements until 1989 and then nothing about the husbands' superannuation entitlements until 1995.

26 The wife says that it was not until 1999 that she first sought and received advice about her property settlement.

27 By a letter dated the 22nd of December 1999 the wife's then Solicitors B.B & Co. wrote to S. D-W, Chartered Accountants putting them on notice of a possible legal action by the wife and requesting the accountants not destroy records especially for the period prior to February 1993. No indication of the nature of the prospective proceedings can be determined from the letter which is annexure "C" to the wife's affidavit.

28 In January 2000 the wife asked her former solicitor Mr F. D. for her matrimonial file. She was advised it had been destroyed.

29 In May 2000 the wife wrote to S. D-W. The letter referred to a conversation in December 1999. The letter relates to a possible action against her former solicitors in relation to the sale of shares to the husband in 1993. There is no mention of any consideration of seeking to overturn the property orders of 1988 or any mention of superannuation entitlements. The wife wrote again on the 11th of May 2000. Again no mention of any section 79A application or anything similar.

30 On the 28th of April 2002 the wife commenced the proceedings for an order under section 79A to set aside the orders of the 13th of December 1988. The day after the application was filed the wife's solicitors H & G wrote to the husband.

31 The wife's evidence is that the parties were married on the 4th of August 1979. She says that she worked full time throughout the marriage in the Manpower business. There was one child of the relationship.

32 The wife says that she was a director of Bhoe Pty Limited for 14 years. There appears to be no issue that she was also a director of NMS. The wife resigned as a director of NMS some time after the property orders were made and she continued as a director of Bhoe until 1993. As I have said in 1993 the wife sold her interest in Bhoe to the husband. It seems the wife harbours some discontent about that sale, however, this is not relevant to the current application.

33 It again is common ground and of some minor relevance, that at about the end of 1995 the husband sold his interest in Bhoe for considerably more than the value placed on the shares by the parties at the time of the sale of the wife's shares to the husband in that company.

34 The husband seeks the Court exercise its inherent jurisdiction to grant a permanent stay of the proceedings instituted by the wife on the ground that they constitute an abuse of process.

35 The abuse of process is said to arise because of the delay by the wife in instituting the proceedings.

36 One of the matters (if not the principal matter of complaint against the husband then, an important one) raised by the wife in her case is that the consent orders should be set aside because the husband failed to disclose to her the existence of superannuation benefits each of the parties had accrued at the time the orders were made. On the wife's own evidence she became aware of the existence of her own superannuation rights in Bhoe Pty Limited Staff Superannuation fund by the 30th of June 1989 at the latest. Notwithstanding this fact she failed to commence proceedings until the 30th of April 2002.

37 The wife says part of the reason for the delay in commencing the proceedings was that she had not received advice she had any action against the husband arising from the failure to disclose his superannuation interest as alleged by her. This may or may not be also tied up with the claim that the wife received incompetent legal advice. This aspect is not exactly clear to me.

38 The husband says that irrespective of the reasons given by the wife explaining the delay in commencing the proceedings from the 30th of June 1989 to the 30th of April 2002 the consequence for him is that the passing of time has resulted in business records, other documents and evidence essential to the husband being able to properly conduct his case have been lost or destroyed. Further he says that the passing of time must be seen to have eroded and/or eradicated relevant memories, including those of the wife.

39 As to the allegation that she received incompetent legal advice it is submitted that this is a matter which must have been known to the wife for many years. Further it is submitted that as a matter of law this ground is doomed to failure. Unless the wife can establish that her legal representation was so incompetent as to amount to no representation at all the ground could not succeed. Further the incompetence must constitute a miscarriage of justice relating to the integrity of the judicial process. (see Clifton v Stuart (1991) FLC 92-194.)

40 The husbands' counsel submits as follows in relation to the Courts jurisdiction to grant the relief sought by the husband. The submissions were largely in written form and for convenience I reproduce same here.

"The Family Court of Australia, as a superior court of record[1], has inherent jurisdiction "such as might be necessary to enable it to do justice within the limits of the jurisdiction which that Act [Family Law Act] confers on it": Taylor v Taylor[2].

The court's ability to utilise that inherent jurisdiction to exercise control over proceedings before it is not limited by statutory provisions such as s.118: see Aldred & Aldred; Westpac Banking Corp.[3] Furthermore, although the Family Law Rules do not address a stay of proceedings upon the ground that a proceeding may constitute an abuse of process, such a specific rule is found in Order 63 rule 2 High Court Rules and may be applied by virtue of the operation of s.38(2) of the Act."

41 The wife does not argue against this jurisdictional point. Her written submission is in the following terms: -

"That this Court has the necessary power to dismiss or permanently stay an application was recognised by Nygh J in Aldred (1986) FLC 91-753, affirmed by the Full Court in Spellson (1989) FLC 92-046 and applied by the Full Court in Bigg v Suzi (1998) FLC 92-799 at84,974. The Full Court said: -

"So under its inherent jurisdiction the Court may strike out the whole or part of the indorsement on a writ or stay or dismiss an action which is frivolous or vexatious or an abuse of process or which must fail or which the plaintiff cannot prove, and which is without a solid basis..." [Bigg v Suzi at 711 (at 5.5)] on application of the High Court Rules (via S.38(2))"An application to stay proceedings on the ground that there is not a reasonable or probable course of action or suit, or that the proceeding is vexatious and oppressive or is an abuse of the process of the Court, may be made at any time and whether the plaintiff does or does not admit the allegations of fact, if any on which the application is founded." [Bigg v Suzi at 711 (at 5.8)]"

42 I agree with both parties submissions on this point of inherent jurisdiction and find I do have jurisdiction/power to grant the application of the husband should a case be made to warrant same.

43 The foundation of the husband's case is that an abuse of process will occur if the wife's application is not permanently stayed**.**

44 The husbands' submissions on this point are extensive. The submissions were largely in written form and for convenience I reproduce particular portions here.

12. The learned authors of Halsbury's Laws of England, Fourth Edition, Butterworths, Vol.37, para 434 state that:

"An abuse of the process of the court arises where its process is used, not in good faith and for proper purposes, but as a means of vexation or oppression or for ulterior purposes, or more simply where the process is misused. In such a case, even if the pleading or endorsement does not offend any of the other specified grounds for striking out, the facts may show that it constitutes an abuse of the process of the court, and on this ground the court may be justified in striking out the whole pleading or endorsement or any offending part of it. Even where a party strictly complies with the literal terms of the rules of court, yet if he acts with an ulterior motive to the prejudice of the opposite party, he may be guilty of an abuse of process, and where subsequent events render what was originally a maintainable action one which becomes inevitably doomed to failure, the action may be dismissed as an abuse of the process of the court."

As will be seen, the modern law has recognised that there are broader circumstances which may constitute an abuse of process.

13. The descriptive terms above should not be regarded as exhaustively describing what might constitute an abuse of process. As Mason CJ said in Rogers v The Queen[4].

"The concept of abuse of process is not confined to cases in which the purpose of the moving party is to achieve some foreign or ulterior object ... The circumstances in which abuse of process may arise are extremely varied and it would be unwise to limit those circumstances to a fixed category."

14. In Walton v Gardiner [5]Mason CJ, Deane and Dawson J said:

"Gleeson CJ and Kirby P [referring to the judgment of the Court of Appeal below]considered that the Court of Appeal has power to make an order staying proceedings if it is satisfied that the continuation of the proceedings would be "so unfairly and unjustifiably oppressive" as to constitute an abuse of process. Their Honours made plain that the court would only be so satisfied in an exceptional or extreme case. Mahoney JA adopted a similar approach, while formulating the appropriate test in slightly different words. His Honour considered that the question for the Court of Appeal was whether, in all the circumstances, the continuation of the proceedings before the tribunal would involve unacceptable injustice or unfairness. In our view the approach adopted by the members of the Court of Appeal was correct.

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness...... The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police[6], as "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people". "

15. Jago v the District Court of New South Wales & Ors.[7], albeit a criminal case, focused upon two questions, namely whether the Common Law recognised a right to a speedy trial separate from an additional right to a fair trial and secondly, whether on the facts of the particular case an appellant's right to a fair trial had been prejudiced by undue delay amounting to an abuse of process. The case nonetheless provides some useful statements of principle. Furthermore, it is submitted that despite the civil nature of these proceedings, when allegations of non disclosure are made invoking serious considerations of the conduct of a respondent akin to allegations of fraud, the principles take on a gloss similar to those applied in criminal cases. In Jago Mason CJ put it in the following manner:[8]

"It is convenient to commence by considering the inherent power of courts to prevent abuses of their process. It is clear that Australian courts possess inherent jurisdiction to stay proceedings which are an abuse of process: Clyne v NSW Bar Association[9]; Barton v The Queen [10]. Subject to statutory provision to the contrary, a court also possesses the power to control and supervise proceedings brought in its jurisdiction, and that power includes the power to take appropriate action to prevent injustice: see Hamilton v Oades [11]. But it may be that "injustice" in this context has a limited meaning, although the power is not to be confined to closed categories: Jackson v Sterling Industries Ltd[12]; Hamilton v Oades. In particular, the criteria for determining what amounts to injustice in a civil case will necessarily differ from those appropriate to answering the question in a criminal context. However, for the purpose of applying the principles of abuse of process, the distinction to be drawn between criminal and civil proceedings is not a rigid and inflexible one. It is the nature of the proceedings, not their formal classification, that is important: Jack Brabham Holdings Pty Ltd v Minister for Industry, Technology and Commerce[13]."

16. The nature of allegations relevant to a proceeding has in many instances been identified as a matter to be taken into account by the court in the application of principle. For example, the fluid standard of proof in the fact finding process which varies in accordance with the seriousness or importance of the issue as discussed in Briginshaw v Briginshaw[14] now, to similar effect at least as to the "strength of the evidence" see: s140(2) Evidence Act, 1995: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd[15]. Similarly, it has been consistently recognised that a party alleging fraud has to establish the allegation and do so clearly: Wentworth v Rogers (No.5)[16]. Such allegations of fraud must be clearly identified and not raised peripherally or nonchalantly in the course of litigation: Gahzal v GIO (NSW)[17]. Where fraud is alleged in proceedings it must be distinctly and particularly pleaded: Wallingford v Mutual Society[18]. The court will not give relief on an issue involving fraud where that fraud has not been specifically charged: Ritter v Northside Enterprises Pty Ltd[19]. These principles are guided by the obvious underlying policy that dictates that persons who have such serious allegations levelled against them must have a full and free opportunity to comprehensively defend themselves.

17. In Jago (supra) Deane J said[20]:

"The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process. Mutltiple prosecutions arising out of one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed."

"The power of a court to control its own process in proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands. See, e.g. Jackson v Sterling Industries Ltd[22]; Hamilton v Oades.[23]

The terms "frivolous", "vexatious" and "oppressive", when used in relation to civil proceedings, sometimes serve to signify that the proceedings are an abuse of process such that, in the interests of the administration of justice, they should attract the grant of a permanent stay. But the terms "vexatious" and "oppressive" may also import a consideration of the justice or fairness of the proceeding, those terms signifying, in appropriate context, proceedings which are "seriously and unfairly burdensome, prejudicial or damaging" or are "productive of serious and unjustified trouble and harassment": Oceanic Sun Line Special Shipping Company Inc. v Fay[24]; Hamilton v Oades[25]"

At p76 Gaudron J identified the nature of the power to grant a permanent stay, whether in civil or criminal proceedings as exercisable only in exceptional cases "sparingly, and with the utmost caution".

18. The case of most immediate relevance in considering the discretion to order a stay of proceedings upon the basis that the applicant wife's delay, in all of the circumstances, constitutes an abuse of process is the decision of the High Court in Brisbane South Regional Health Authority v Taylor [26].

This case involved s.31(2) of the Limitation of Actions Act 1974 (Qld) which reposes a court with a discretion to order that a plaintiff be permitted to commence an action that is otherwise statute barred as a consequence of the statutory limitation period. The section requires two limbs to be satisfied before the discretion is enlivened. Importantly, in terms of the utility of what the High Court said in so far as it might provide guidance in the exercise of discretion in the present case, it is significant to recognise that the section (like s.79A) does not specifically invite the court to consider prejudice to the respondent or defendant. However, as will be seen, in circumstances where the passing of time has the effect of working an unfairness upon the defendant the court has regarded this prejudice as a very significant matter in the exercise of discretion. The court recognised that even where the two limbs were satisfied an applicant still bears the legal onus of showing that the justice of the case requires the discretion to be exercised favourably and an extension would not result in significant prejudice to the prospective defendant. Further, that nothing in the section required a weighing process between the potential prejudice to the applicant and prospective defendant.

Whilst it is not the principle upon which the present interlocutory application rests, it is nonetheless of significance to note that even if a ground under s.79A(1)(a) is made out (including a finding of miscarriage of justice) it is not axiomatic that the order will be varied, set aside or that the court would proceed to make another order[27]. So much is made clear by the final words in s.79A(1) which, by operation of the word "may" and the words "if it considers appropriate", clearly identify that the court is invested with an over-arching discretion as to the order it would make. As the Act is silent as to the matters to be taken into account in the exercise of that residual discretion the "discretion is, therefore, unconfined except in so far as the subject matter and the scope and purpose of the [Act] enable it to be said that a particular consideration is extraneous": Water Conservation and Irregation Commission (NSW) v Browning [28]. This undoubtedly leaves scope to take into account delay by an applicant in instituting proceedings; hardship to a respondent, perhaps constituted by the necessity of his or her defence of the proceedings with less than satisfactory evidence consequence upon the delay; the stress and hardship that the making of an order would impose upon the respondent after the passing of so much time.

19. In Brisbane Health, in brief, the facts were that the respondent, 17 years prior to her application for leave, had undergone a hysterectomy on the recommendation of a doctor employed in the appellant's hospital. She alleged negligence on the part of the doctor, for whom the appellant was vicariously liable, by reason of the doctor's alleged failure to explain the options available to her when it was now contended by her that her condition was in no way life threatening despite the doctor's advice at the time that she was at risk of death. The doctor no longer lived in Australia and the appellant adduced evidence that it had been unsuccessful in locating him, contemporaneous notes made by the doctor at the time were available but were very brief. The court observed that a crucial issue at any trial would be evidence of the conversations prior to the operation between the respondent and the doctor.

20. The scope of factors that a judge is entitled to take into account when reposed with a broad discretion, as quoted from Water Conservation above, is apposite to a consideration of factors that the court may take into account in the exercise of a discretion to order a permanent stay as sought in the present proceedings. In Jago[29]Gaudron J, after referring to the scope of statutory discretion said:

"So too, the scope of the power to grant a general stay of proceedings and the underlying general purpose, namely, to control the court's process and proceedings, serve to provide some general indication of the matters which must be taken into account and the limits to matters which may be taken into account when the power is invoked."

This statement comfortably permits the court to have regard, even though s.79A is without a statutory limitation period, to the policy considerations identified in law as underpinning the statutory regime of limitation periods. In this regard the judgment of McHugh J (with whom Dawson J agreed and formed the majority with Toohey and GummowJJ who delivered a separate joint judgment) in Brisbane Health is instructive both as to policy history and the real consequences for a respondent to litigation after the passing of many years from when the facts central to the cause of action arose.

21. In Brisbane Health[30] McHugh J said:

"The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly four hundred years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "where there is delay the whole quality of justice deteriorates[31]". Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed but sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo[32] "What has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause or action arose......(at p552) Moreover, the right of the citizen to a speedy hearing of an action that had been commenced was acknowledged by Magna Carta itself. Thus for many centuries the law has recognised the need to commence actions promptly and to prosecute them promptly once commenced. As a result, courts exercising supervisory jurisdiction over other courts and tribunals in their jurisdictions have power to stay proceedings as abuses of process if they are satisfied that, by reason of delay or other matter, the commencement or continuation of the proceedings would involve injustice or unfairness to one of the parties[33].

The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost[34]. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which give rise to it have passed.[35] Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.......(at 553). The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible[36]."

22. At page 555 McHugh J said, after brief reference to the facts in the case before

"When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice."

His Honour then went on to refer to the likelihood and nature of evidence lost by time at 556 stating:

"......the long delay gave rise to a general presumption of prejudice. In the ordinary course of events, it is probable that the plaintiff discussed her operation and the reasons for it with various people - friends, relatives and perhaps even the nursing staff. If Dr. Chang's notes are accurate and the action had been commenced within the limitation period, one or more persons in this group may have been able to provide evidence or information favourable to the defendant. By the time the application for extension was made, it is likely that such conversations, if they took place, would be no longer within the memory of the participants. The finding of actual prejudice and the possibility of other prejudice to the defendant gave the defendant a strong - in my view overpowering - case for resisting the application."

23. The words of Justice McHugh provide an eloquent precision to understanding the impact of delay in the present case. Here the lost evidence which would have been available had the wife acted promptly would have been crucial in equipping the husband to resist the claim. The evidence filed in support of the application for a stay makes a clear and compelling case as to the impact of missing business records - not only in resisting allegations of non disclosure but relevant to the important task of demonstrating, in the event that those allegations were proved, that a miscarriage of justice has not been occasioned.

45 The submissions of the husband then address examples of cases where delay in commencing 79A proceedings was seen by the Court as a relevant matter. The cases cited include;

Official Trustee in Bankruptcy v Donovan (1996) FLC 92-703;

Arpas v Arpas (1989) FLC 92-042;

McIntyre v McIntyre (1994) FLC 92-468;

46 It is thereafter submitted by the husband that the Family Court in exercising the inherent jurisdiction, referred to earlier in these reasons, "acts as a court of equity, in which jurisdiction, the desirability of promptitude is repeatedly emphasised and led to the doctrines of Laches and Acquiescence".

47 The submissions of the husband then proceed as follows: -

"The learned authors of Equity Doctrines and Remedies[37] describe a "second kind of Laches, consisting of delay together with prejudice to others" as to which they provide a number of examples but relevantly:

"......loss of evidence can easily arise out of delay in this regard; if great delay occurs, witnesses may die, written evidence may get lost and memories may fail[38]. It was on this basis that the defence was held to have been made out by Needham J in Hughes v Schofield[39] (an action for specific performance) and by Holland J in Crago v McIntyre[40] (an action for a declaration that a voluntary settlement was void). Crago v McIntyre was approved by the High Court in Orr v Ford [41].

31. The discussion in Equity Doctrines and Remedies as to the principles of Laches at paras 36-025 and 36-030 are of relevant assistance."

48 Further submissions were made by the husband highlighting the other experiences of the Court which require the exercise of discretion. The submissions then addressed the word "cruel" as used by McHugh J in Brisbane Health. The effect of the submission is that the cost of litigation should not only be measured in financial terms but also there is the emotional cost and strain associated with modern litigation to be considered.

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49 The wife's submissions on the application of "abuse of process" principles are as follows. The submissions were largely in written form and for convenience I reproduce here the parts which I conclude are particularly relevant:-

In essence in this case, the Husband has to establish that to permit these proceedings to continue would be an abuse of process.

Critically, the principles which govern the exercise of the discretion to stay (under the inherent jurisdiction or the High Court Rules) are such that a stay, is, to use the words of Kirby J in Lindon v The Cwth (No 2) [1996] HCA 14; (1996) 70 ALJR 541 at544:

"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".

In General Sheet Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130, Barwick CJ said, in relation to the power to strike out summarily, that:

"Great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal".

The grant of a stay of proceedings is discretionary and the circumstances will usually have to be extreme for such relief to be given (The Queen v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 605; 615-616).

It is submitted that the Husband's application to permanently stay the Wife's S79A claim is a form of summary proceeding.

The matter has proceeded without witnesses being called for cross examination, on submissions only.

Therefore, the power to strike out or permanently stay proceedings under either the Family Court's inherent jurisdiction, or under the High Court rules, is discretionary.

The principles which govern the exercise of that discretion have been stated by Kirby, J. In Linden v Commonwealth (no. 2) [1996] HCA 14; (1996) 136 ALR 251 at 255-6; [1996] HCA 14; 70 ALJR 541 at 544-5, as follows:

"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 O26, R18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided (General Steel Industries Inc v Commissioner for Railways (New South Wales) (1964) 112CLR 125 at 128f); (Dyson v Attorney-General (1911) 1KB 410 at 418)

2. To secure such relief the parties seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable course of action (Munnings v Australian Government Solicitor [1994] HCA 65; (1994) 118 ALR 385 at 388; [1994] HCA 3; 68 ALJR 196 at 171ff per Dawson J) or in advancing a claim that is clearly frivolous or vexations (Dey v Victorian Railways Commissioners (1949) 78CLR 62 at 91)

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 termination (Coe v The Commonwealth (1979) 24ALR 118; [1979] HCA 68; 53 ALJR 403); (Wickstead v Browne (1992) 30 NSWLR at 5-7) Even a weak case is entitled to the time of the Court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently uncompromising case into a successful judgement.

4. Summary relief of the kind provided by O26, R18, for absence of a reasonable course of action, is not a substitute for proceeding by way of demurrer. (Coe v The Commonwealth) 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 and 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, the Court will ordinarily allow that party to reframe its pleading. (Church of Scientology v Woodward [1982] HCA 78; (1980) 154 CLR 25 at 79; [1982] HCA 78; 43 ALR 587) A question has arisen as to whether O26 R18 applies to part of the pleading (Northern Land Council v The Commonwealth [1986] HCA 18; (1986) 161 CLR 1 at 8; [1986] HCA 18; 64 ALR 493) However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Linden's statement of claim.

6. The guiding principle is, as stated in O26, R18(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 cost and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit."

Therefore, it is submitted that for the Husband to succeed he must show that it is clear on the face of the Wife's documents that she lacks a reasonable course of action."

"He must also show that the Wife's proceedings are "doomed to fail." In the simplest of terms, he must show that if the Wife's evidence was accepted and her case taken at its highest that she could not establish a basis for relief sought.

At a summary hearing the party seeking summary dismissal does not have the right to produce any evidence at the summary hearing to contradict the evidence of the other party or to seek to contradict any inference which it might be submitted should be drawn from that evidence. (Bigg v Suzi at 720 (at paragraph 6.31))

The Husband can therefore only place before the Court evidence that establishes the matter on which he bears the onus. It is submitted that for the purposes of this application that, where the Husband's evidence conflicts with that of the Wife, the Wife's evidence should be preferred. (Anderson v Anderson FLC 93-016 at paragraph 21) See also Prior v Prior [2002] FamCA 327; (2002) FLC 93-105 at paragraph 25.

At the commencement of the hearing, Your Honour provisionally allowed in documents over the Wife's objections, leaving argument on these matters to the submissions. It is submitted that the documents tendered by the Husband should only be let in to the extent that they establish the matters on which he bears the onus.

On an application for summary dismissal it is only necessary for the wife to produce evidence on which it would be open to the Court, on a trial of the proceedings, to draw inferences.

At the stage of a summary dismissal application, interlocutory procedures such as discovery, subpoenas and the administering of Answers to Specific Questions have not taken place, neither has cross examination.

50 Having read and heard the submissions of the wife it appears to me, with due respect to the wife, that she has, at least in part, failed to grasp the true nature of the case brought by the husband.

51 It is the husbands submission, that in a case for permanent stay, based upon a conclusion that the remedy was required to prevent a substantial injustice arising as a result of what must be seen as an abuse of process, it is not necessary to establish that the respondent to the application (in this case the wife) could not succeed as a matter of law in the substantive proceedings. I accept this submission as a correct statement of principle.

52 In fact, it appears to me, on the principles referred to in the husbands submissions the wife may be seen to have a meritorious case but still be restrained by the Court though the granting of a permanent stay. It is not the merit of the case to be run by the wife which is of critical importance but rather her conduct in the lead up to the commencement of the action. The merit of the case to be run is a matter which does have a role in the exercise of the Courts discretion, as will be discussed later in these reasons.

53 It is conceded by the wife that in 1989 she knew that she had an entitlement to superannuation with Bhoe Staff Superannuation Fund. She knew this because the Fund made a voluntary payment to her of substantial proportions. If she did not know herself directly at that time that the husband also had an entitlement in the Fund then it was in all the circumstances reasonable for her to conclude that on the balance of probabilities he could have.

54 It is an incontrovertible fact that the wife delayed bringing an action until 2002. That delay, the husband says, amounts in the circumstances of this case, to an abuse of process. It is this delay which the husband says would create an injustice to him should the wife be permitted to continue the action.

55 The injustice is said to arise because the delay is of such magnitude that the Court can presume documents, witnesses and memories could not reasonably be expected to endure to a degree that the Court could be reasonably satisfied that a just and correct conclusion could be reached.

56 Further, in this case, the husband puts before the court evidence of particular difficulties he would face in now having to call evidence. He says evidence would have to be based on suppositions and educated guesses in order to try and piece together the parties' financial circumstances which existed at the time the property orders were made.

57 I accept the submissions of the husband in relation to the proposition that a permanent stay can properly be granted where the Court is satisfied that an abuse of process would occur if the stay was not granted. I further accept that in an appropriate case, delay can give rise to an abuse of process where that delay has a consequence of creating injustice to the respondent if the action is permitted to proceed.

58 I accept the thrust of the submission made by the wife that the relief should only be granted "rarely and sparingly". This is a matter about which there is no disagreement.

59 I accept that the discretion which reposes in the Court in exercising the jurisdiction to grant a permanent stay includes the ability to properly refuse to grant the relief even where a case is otherwise established of injustice potentially flowing to the respondent as a result of the delay. This is because there may be some other fact or circumstance which would call for the weighing of potential injustice to the applicant as a result of not being able to proceed with the action.

60 What then are the indicia or circumstances in which a Court might grant the relief?

1. Without seeking to develop and exhaustive list, it may be an abuse of process to commence or continue proceedings in the Court where:-

(a) The proceedings are commenced not in good faith and for an improper purposes;

(b) The Court "is satisfied that the continuation of the proceedings would be so unfairly and unjustifiably oppressive."

(c) The processes and procedures of the Court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.

(d) It would be manifestly unfair to a party, or would otherwise bring the administration of justice into disrepute among right-thinking people.

(e) The proceedings are frivolous, vexatious or oppressive.

2. That the application of the relief should only be applied in an exceptional or extreme case. Sparingly and with the utmost caution.

3. The proceedings may be "unjustifiably oppressive" where there is inordinate delay in commencing the litigation.

4. "Where there is delay the whole quality of justice deteriorates. What has been forgotten can rarely be shown"

5. Long delay gives rise to a general presumption of prejudice.

6. Delay may give rise to an abuse where it is such that a court could conclude that by the time the matter came to trial relevant facts would no longer be in the minds of the potential witnesses.

7. The finding of actual prejudice and the possibility of other prejudice should give rise to the relief sought.

Can the husband call evidence to support his application for a permanent stay?

61 At the conclusion of the submissions there remained little issue between the parties about this point.

62 This Court has in the decision of Ferrall and McTaggart (trustees for Sapphire Trust) & Ors v Blyton [2000] FamCA 1442; (2000) FLC 93-054 determined questions of law and application of principle, so far as it relates to applications for summary dismissal. In that case the Full Court said as follows:-

"5.5 That this Court has the necessary inherent power to dismiss or permanently stay an application which cannot succeed, was recognised by Nygh J in Aldred (1986) FLC 91-753 and affirmed by the Full Court in Spellson (1989) FLC 92-046. In Aldred, in addition to referring to the authorities concerning the inherent powers of this Court, his Honour referred to Halsbury's Laws of England 4th Edition vol 37 Practice and Procedure, paragraph 435, where it is said:

'`So under its inherent jurisdiction the court may strike out the whole or part of the endorsement on a writ or stay or dismiss an action which is frivolous or vexatious or an abuse of process or which must fail or which the plaintiff cannot prove, and which is without a solid basis ..'''

5.6 It is also stated in Halsbury that the power to strike out, stay or dismiss under the court's inherent jurisdiction is discretionary.

5.7 Further, pursuant to s 38(2) of the Act, the Family Court may, where its own rules are insufficient, apply the rules of the High Court. Included in those latter rules is O 26 r 18 which is as follows:

'`(1) The Court or a Justice may order a pleading to be struck out on the ground that it does not disclose a reasonable cause of action or answer.

(2) In that case, or in case of the action or defence being shown by the pleadings to be frivolous or vexatious, the Court or a Justice may order the action to be stayed or dismissed, or judgment to be entered accordingly, as is just.'

5.8 In Aldred (supra), Nygh J relied upon s 38(2) of the Act to draw upon O 63 rr 1 and 2 of the High Court Rules, which are as follows:-

'`1. The Court or a Justice may, at any time after the institution of a proceeding, direct a stay of proceedings, either as to the whole or part of the proceeding or as to any proceedings under a judgment or order given or made in the proceeding.

2. An application to stay proceedings on the ground that there is not a reasonable or probable cause of action or suit, or that the proceeding is vexatious and oppressive or is an abuse of the process of the Court, may be made at any time and whether the plaintiff does or does not admit the allegations of fact, if any on which the application is founded.''

5.9 It will be seen that the powers in O 26 r 18 and O 63 rr 1 and 2 are discretionary, and that in the former those powers include a power to dismiss an action where either a pleading is 'struck out' or the action is shown to be frivolous or vexatious.

5.10 The principles which govern the exercise of that discretion, be it exercised under O 26 r 18, or under the inherent power, [or, we would suggest, under O 63 rr 1 and 2] were recently stated by Kirby J in Lindon v. The Commonwealth (No. 2) [1996] HCA 14; (1996) 70 ALJR 541 at 544-5, as follows:

'`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; [General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 128f; Dyson v Attorney-General [1911] 1 KB 410 at 418.

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 [Munnings v Australian Government Solicitor [1994] HCA 3; (1994) 68 ALJR 196 at 171f, per Dawson J] or in advancing a claim that is clearly frivolous or vexatious; [Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91.]

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 termination. [Coe v The Commonwealth [1979] HCA 68; (1979) 53 ALJR 403; Wickstead v Browne (1992) 30 NSWLR at 5-7.] 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 a demurrer. [Coe v The Commonwealth [1979] HCA 68; (1979) 53 ALJR 403 at 409.] 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 and 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. [Church of Scientology v Woodward [1982] HCA 78; (1980) 154 CLR 25 at 79.] A question has arisen as to whether O 26, r 18 applies to part of a pleading. [ Northern Land Council v The Commonwealth [1986] HCA 18; (1986) 161 CLR 1 at 8.] 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; and

6. The guiding principle is, as stated in O 26, 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 to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.'"

63 Later in Farrell and McJaggert the following appears: -

"97. In Pelerman v Pelerman [2000] FamCA 881; (2000) FLC 93-037, a differently constituted Full Court delivered judgment while the present case has stood reserved. In para 46 (FLC 93-037 at 87,582) , Ellis, Lindenmayer and Rose JJ summarised the principles in Bigg v Suzi (supra) in the following manner:

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

(c) The parties seeking summary dismissal must show that the application is "doomed to fail" or as has been otherwise described "that the opponent lacks 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.".

98. Counsel for the respondent, we think correctly, pointed out that while the Court has jurisdiction summarily to dismiss or stay and(sic) application, its exercise is reserved for a case in which it can be demonstrated that the substantive application cannot possibly succeed. He pointed out that in a case such as the present, the question is whether, assuming in favour of the husband, the matters of fact on which he relies, nonetheless his case, as a matter of law is so clearly untenable that it cannot possibly succeed. In fact in the present case, the factual version advanced by the husband had not been contradicted by the applicants who filed no material before his Honour nor did they seek to do so on appeal. O'Ryan J took the view that the applicants had not satisfied this test and for the reasons hereafter appearing we think he was undoubtedly correct."

64 The emphasis in paragraph 98 of the above decision has been added by me.

65 There are examples of this Court (as above emphasised in para 98) using or referring to the terms "summary dismissal" and "stay" or "permanent stay" in the same breath, as if they were one and the same thing. With respect I would disagree with such a conclusion. I suspect the two terms have been linked together because, the net effect of both outcomes to the applicant in the substantive proceedings sought to be dismissed or stayed, is effectively the same. Namely, that the proceedings can no longer continue.

66 Proceedings for the relief of "Permanent Stay", when based upon the conclusion that to allow the proceedings to continue would amount to an "abuse of process", seem to me to require a different approach to an application for "summary dismissal", as referred to in Ferral. In the first place it is necessary for the applicant, seeking the relief based upon "abuse of process", to demonstrate by evidence, or the Court record, the facts or circumstances which exist to warrant the remedy. This may involve the applicant for relief relying upon evidence filed or adduced by the respondent to the stay application or by the applicant. The nature of the hearing will be determined by the nature of the evidence to be relied upon by the parties. The proceedings may proceed summarily or may involve the examination and cross-examination of witnesses.

67 The other substantial difference between a case for summary dismissal and a stay or permanent stay is that in the latter case it is not necessary to establish that the substantive proceedings could not possibly succeed.

68 In the case before me the parties determined how the case was to proceed. In an adversarial system the Court will not interfere in the conduct of parties cases unless called to do so by one of the parties or through the application of Rules of Court, case management or practice or some applicable statutory provision.

69 In the case before me the evidence relied upon by the husband to ground his case is mostly non-contentious.

70 In her oral submissions the wife's counsel conceded that the husband would bear an onus to establish a case of "abuse of process". It was therefore conceded that the husband could rely upon evidence placed before the Court by him which went to that issue.

71 The husband argues that the 'summary relief' mentioned in Lindon was confined to summary dismissals, because otherwise it would apply to all summary relief including interlocutory hearings.

72 The husband relies on High Court Rules Order 63 Rule 2, which provides:

"Stay of Proceedings on Ground of Abuse of Process

(2) An application to stay proceedings on the ground that there is not a reasonable or probable cause of action or suit or that the proceeding is vexatious and oppressive or is an abuse of the process of the Court, may be made at any time and whether the plaintiff does or does not admit the allegations of fact, if any, on which the application is founded."

73 The husband claims that this rule expressly allows an applicant for this relief to place before the court allegations of fact that are contrary to the case of the plaintiff in the substantive proceedings. The husband cites Van Der Lee & Ors v State of New South Wales [2002] NSWCA 286 in support, which allowed the admission of evidence of an alleged abuse of process.

74 In Anderson v Anderson [1999] FamCA 1026; (2000) FLC 93-016 there was an application for summary dismissal of an application by the husband to set aside consent orders on the basis that there had been a miscarriage of justice by reason of suppression of evidence. Chisholm J applied Bigg v Suzi and its application of Lindon, and summarily dismissed the husband's application due to his finding that the substantive proceedings had 'no chance of success'. In regards to the husband's evidence, Chisholm J stated that:

"It is clear, I think, that I should for the purpose of this exercise assume that to the extent that the husband's evidence conflicts with that of the wife, the husband's evidence would be preferred. It is less clear whether I should disregard entirely the evidence by the wife. Mr Goldstein made no submission to this effect for the husband. Had this submission been made it would have been logical for him to object to the reading of the wife's affidavit. There is no material or submission before me to indicate which parts of the wife's affidavit material (apart from any that conflict with the husband's affidavit) might be the subject of challenge. In those circumstances it seems that I should have at least some regard to the wife's evidence in dealing with this application. However as will be seen, nothing turns on this question, since my conclusion is the same whether or not I take the wife's evidence into account".

75 In short I accept the thrust of the husband's submissions on this issue.

1. Under what circumstances should the court exercise the discretion to grant a permanent stay?

76 I have already dealt with this issue as set out above. I have determined, in this case the law does allow for the Court to grant a permanent stay where it would amount to an abuse of process to allow the substantive proceedings to continue.

2. (a) Has there been serious or undue delay by the wife in commencing the proceedings under section 79A?

(b) Is the delay in all the circumstances unfairly burdensome, prejudicial or oppressive to the husband?

(c) Ought the wife, in all the circumstances have instituted proceedings or given notice of the prospect of proceedings at an earlier point of time?

(d)Would this have been likely to have ameliorated prejudice to the husband?

77 Counsel for the husband argued that it is the process of determining the impact upon the husband of the delay and the ability, consequent thereupon, for the Court to do justice as between the parties, which are the determinants of whether it would be an abuse of process to permit the wife to continue with her action.

78 I agree with the above mentioned submission. Further I think the use of adjectives such as "undue", "serious", "unacceptable" or "lengthy" to describe the delay are really quite limiting and possibly confusing or wrong when used to describe the exercise to be carried out by the Court.

79 I also conclude that in deciding this issue I need to remember the matters I referred to earlier in these reasons namely: -

(f) The Court "is satisfied that the continuation of the proceedings would be so unfairly and unjustifiably oppressive."

(g) The processes and procedures of the Court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness.

(h) It would be manifestly unfair to a party, or would otherwise bring the administration of justice into disrepute among right-thinking people.

(i)

The proceedings are frivolous, vexatious or oppressive.

8. That the application of the relief should only be applied in an exceptional or extreme case. Sparingly and with the utmost caution.

9. The proceedings may be "unjustifiably oppressive" where there is inordinate delay in commencing the litigation.

10. "Where there is delay the whole quality of justice deteriorates. What has been forgotten can rarely be shown"

11. Long delay gives rise to a general presumption of prejudice.

12. Delay may give rise to an abuse where it is such that a court could conclude that by the time the matter came to trial relevant facts would no longer be in the minds of the potential witnesses.

13. The finding of actual prejudice and the possibility of other prejudice should give rise to the relief sought.

80 Thus the delay, if it is to be seen as an abuse of process, must satisfy the above criteria.

81 What then is the impact upon the husband of the delay of about 13 years on the wife's part?

82 It is submitted by the husband that in order to successfully oppose the wife's application he will need to lead evidence in relation to the following matters:-

(a)

That the wife knew, or ought be seen to have known, all relevant information about the Bhoe Pty Limited Staff Superannuation Fund (and if necessary the Norman Management Services Superannuation Fund).

(b)

That the orders made in 1988 represented a settlement which was "in the range". That the result was not manifestly inadequate.

(c)

That the value of the parties share holdings used to determine the division of property reflected in the orders was correct.

(d)

That there was no "non disclosure" by the husband**.**

(e)

That the value of the husband's assets at the commencement of cohabitation was substantial.

83 The complaint by the wife that the result was manifestly inadequate would involve the Court in having to assess all of the contributions of the parties at the time the orders were made. The Court would have to be able to consider all relevant section 75(2) matters at that time. Further the Court would have to be able to determine what the assets, liabilities and resources of the parties were at that time (1988).

84 In order to determine whether the division of property was appropriate the husband claims a substantial initial contribution. He says therefore that it will be necessary to value his assets at the date of cohabitation.

85 The husband says that the evidence of Mr Jansen illustrates the difficulties for the husband in valuing the parties corporate interests and the underlying business of the companies.

86 One of the matters raised in Mr Jansen's affidavit is a reference to a letter dated the 8th of January 1988 from Einfeld Symonds & Lowy addressed to the parties c/- Manpower. The letter clearly refers to the parties superannuation benefits. The wife in her affidavit in paragraph 8 on page 6 refers to this document and in so doing does not specifically deny she was privy to the document prior to the orders being made. If I assume that the wife denies she did see the document, prior to signing the consent orders, it would mean that the husband would be left to establish by corroborative evidence if possible, that the contrary was the case. Again the husbands paragraph 21.1 is equivocal in that it does not positively assert that the wife did see the valuations so prepared. This is something he would need to establish by evidence.

87 The Court would have to conclude that it would be most unlikely the recollections of Mr Ron D-W would be sufficient for him to now be of any real assistance on this point. Likewise the recollections of any employees who may have been privy to these matters at the time would be likely to be unreliable or non existent. In deed the recollections of the parties themselves would be expected to be unreliable due to the lapse of time. The material contained in the subject letter of the 8th of January 1988, if it could be proved was shown to the wife at that time, could be a complete answer to one of the wife's grounds for setting aside the orders made.

88 Mr D-W in his affidavit/report says that certain documents would be "core and essential" to prepare a proper valuation of the corporate interests (see para 34 on page 11). Those documents are not available.

89 It is further said by Mr D-W that "of course, it would be possible for a valuer to reach a heavily qualified opinion". He says however that it would be so qualified as to be merely an educated guess. He concludes such a valuation would be "dangerous and unreliable".

90 It is submitted by the husband that what flows from the evidence of Mr. D-W is that if the wife had made her application in 1989, when she claims she first became aware of her own superannuation entitlements, all of the necessary documentation and recollects of possible witnesses for the husband would have been available and probably reliable.

91 In answer to the evidence of Mr. Jansen the wife relied upon the evidence of Rodger William Flynn sworn the 19th of March 2003. In that evidence Mr Flynn works on the assumption that the company accounts for the years ended 30/6/1985, 1986 and 1987 for Bhoe and NMS are available. Ms Knox told me by way of appropriate concession that some of the financial statements are missing. As far as I can tell, from the accumulation of evidence received by me, the financial statements for Norman Management Services Pty Limited for the years ended 30/6/1982, 83, 84, are missing. There are no accounts for 30/6/1985 however these figures can be seen in the 1986 accounts. In relation to Bhoe Pty. Limited there are appear to be no financial accounts for the company for the years ended 30/6/1982 to 1987. Again there are accounts for the 1988 year which show the position for 1987.

92 Mr. Richardson for the husband points out that the company accounts which have been recovered from the records of the Securities Commission do not have attached the usual revenue and expenses provisions and therefore it is not possible to see if those parts of the accounts would have enlivened the wife's interest in the parties superannuation entitlements had she looked at same at the time she signed the accounts.

93 Mr Flynn says in paragraph 13 of his report the following: -

"provided sufficient information is still in existence we consider that a valuer would be able to prepare a valuation."

94 In paragraph 14 of his report Mr Flynn sets out his understanding of the information which exists. This includes an assumption in relation to the 1985, 86 and 1987 financial accounts for Bhoe and NMS. It would seem that based upon the evidence before me he was misinformed.

95 Mr Jansen in his affidavit of 12/6/2003 points out the difficulty of preparing a valuation of a company 15 years retrospectively. He says that in the preparation of a valuation, assistance in the nature of independent corroboration is often required. He says it is difficult to see how that could be reliable after 15 years.

96 Again, the statement by Mr Flynn that the husband and wife would be able to give a reliable detailed commentary in relation to the operations of the company, so far as it relates to the events pre-dating 12/1988 is called into question by Mr Jansen.

97 Mr Flynn in paragraph 16 refers to expected further information which he thought might assist in the valuation of the companies in December 1988. Mr Jansens affidavit says that there is very little of assistance. In fact he says the contents of the box raise further examples of difficulty in valuing the entities. This relates to some income which was derived from a film investment.

98 It appears from the contents of paragraphs 17 to 20 of Mr Flynn's report that he was expecting further evidence to be available than the information Mr Jansen was advised was available. With what has transpired in terms of the production of and search for relevant documents, Mr Flynn may have been over optimistic.

99 In relation to the valuation of the husbands' company NMS as at August 1977 (date of cohabitation) Mr Flynn says the company can be valued on a realisable assets methodology. He says the wife has a Balance Sheet for the company for 30/6/1977. Mr Jansen says that detailed profit and loss statements for that year are not available. He says to undertake a valuation without access to profit and loss statements is wrong. As the companies business was that of running an employment agency it is hard to imagine that it would acquire many tangible assets. The net operating profit after income tax is known for 1975, 76 and 1977.

100 I accept that there is a significant chance of injustice arising to the husband because he could not reliably establish the value of NMS as at August 1977.

107 I conclude that the delay occasioned by the wife not commencing the proceedings until 2002 has impacted upon the husbands' ability to properly defend the action commenced in 2002. I conclude that the probabilities are that a competent valuer could not, with precision, now retrospectively value the companies NMS and Bhoe in a way which would produce a reliable valuation. I accept that a valuation could be prepared however, it would be reliant upon considerable supposition and guesswork. It is, in my opinion improbable that either parties' relevant recollections will be of any real assistance as they are unlikely to be reliable if they exist at all. It would be unlikely that any valuation would be anything other than "roughly correct". In such circumstances I find the husband would be subject to "actual prejudice".

108 If it be relevant, I would have to presume, on the balance of probabilities, that the delay in this case, would be likely to render it impossible for specific recollections to be held by relevant witnesses, including the parties, about relevant transactions up to and including the 13th of December 1988.

109 On this basis I would conclude that the continuation of the proceedings would be unfairly oppressive upon the husband.

110 In answer to the question of whether the wife should have commenced proceedings earlier or given notice of same, all I can do is note that the sooner the proceedings had been commenced the less prejudice would flow to the husband arising out of this delay. That would then directly impact upon the determination of whether there is likely to be abuse of process if the proceedings continue.

Is it necessary to prove that relevant documents or other evidence or recollections have been lost or is it only necessary to establish a reasonable presumption to this effect?

What relevant evidence might it be presumed has been lost to the husband occasioned by the delay of the wife?

111 As referred to earlier the husband has made the following reference to the decision of the High Court in Brisbane Health.

In Brisbane Health[42] McHugh J said:

"The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly four hundred years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that "where there is delay the whole quality of justice deteriorates[43]". Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed but sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo[44] "What has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause or action arose......(at p552) Moreover, the right of the citizen to a speedy hearing of an action that had been commenced was acknowledged by Magna Carta itself. Thus for many centuries the law has recognised the need to commence actions promptly and to prosecute them promptly once commenced. As a result, courts exercising supervisory jurisdiction over other courts and tribunals in their jurisdictions have power to stay proceedings as abuses of process if they are satisfied that, by reason of delay or other matter, the commencement or continuation of the proceedings would involve injustice or unfairness to one of the parties[45].

The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost[46]. Second, it is oppressive, even "cruel", to a defendant to allow an action to be brought long after the circumstances which give rise to it have passed.[47] Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them.......(at 553). The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible[48]."

22. At page 555 McHugh J said, after brief reference to the facts in the case before the court:

"When a defendant is able to prove that he or she will not now be able to fairly defend him or herself or that there is a significant chance that this is so, the case is no longer one of presumptive prejudice."

His Honour then went on to refer to the likelihood and nature of evidence lost by time at 556 stating:

"......the long delay gave rise to a general presumption of prejudice. In the ordinary course of events, it is probable that the plaintiff discussed her operation and the reasons for it with various people - friends, relatives and perhaps even the nursing staff. If Dr. Chang's notes are accurate and the action had been commenced within the limitation period, one or more persons in this group may have been able to provide evidence or information favourable to the defendant. By the time the application for extension was made, it is likely that such conversations, if they took place, would be no longer within the memory of the participants. The finding of actual prejudice and the possibility of other prejudice to the defendant gave the defendant a strong - in my view overpowering - case for resisting the application."

112 The above quote refers to a "presumption of prejudice". The logic and compelling nature of the statements by Justice McHugh are overwhelming. It seems to me that if a person cannot remember what has been forgotten, then the greater the period of time between the event and the requirement to remember the greater the presumption should be. Like all presumptions it must be capable of rebuttal. Thus clear documentary evidence which would cover the field of the particular dispute and therefore negate the requirement to rely upon human recollection might provide for such a rebuttal. However, history shows that sometimes it would be inequitable or give rise to an injustice for a Court to reach a decision based solely on the contents of the document. It may be that parties by their words and/or actions have released each other from the operation or purport of the documented agreement. This is a matter, which would need to be borne in mind by the tribunal considering the effect of delay in commencing proceeding on the particular case under consideration.

113 The conclusion I reach on this issue is that the Court can presume that delay in commencing proceedings will cause memories to fade and be inaccurate. It can presume that relevant documents will no longer be available. The strength of the presumption and the evidence required to rebut the presumption will vary according to the particular facts of the case including, but not limited to, the length of the delay.

114 Considering the above and my earlier conclusions in these reasons it is axiomatic that evidence of loss of relevant documentation can be led by the applicant.

115 If it not be plainly evident from what has been said so far in these reasons I conclude that given the time lapse in this case relevant memories and documents could be expected to be no longer available to the husband.

6. What are the merits of the wife's section 79A application?

116 Counsel for the husband submitted that I should not endeavour to consider the merits of the wife's case for relief under section 79A in any detailed fashion. I should take a broad view of her case and use the conclusion reached on such view as a weighting factor when determining whether to exercise the discretion to permanently stay the wife's application. This weighing exercise only comes into play if I conclude that the delay on the part of the wife in commencing the proceedings would amount to an abuse of process if the proceeding continued. I agree with this submission.

117 Having submitted that I should only take a broad view of the wife's case for setting aside the consent property orders, I should note that the husbands' evidence and submissions on this point were very detailed and extensive. I record this less it be thought that I have simply overlooked that evidence and those submissions.

118 Counsel for the wife submitted that the wife's application under section 79A is based upon the following: -

(a)

That the result was manifestly inadequate;

(b)

That the husband failed to disclose the existence of his superannuation entitlements (and I understand the wife's superannuation entitlements) prior to the property orders being made;

(c)

The wife was given incompetent legal advice**.**

119 The husband, in his evidence denies he has failed to disclose all relevant facts. He opposes the wife's application to set aside the orders.

120 In relation to the allegation that the husband failed to disclose his superannuation or that the parties were entitled to any superannuation benefits the husband says that the wife was a director of each of the relevant companies. She was required to and did sign the company accounts in each year. The company accounts for various years would clearly have put the wife on notice of the existence of superannuation funds. Further, the husband says that the wife was the Trustee of the Bhoe Pty Limited Staff Superannuation Fund. As trustee she had obligations at law in terms of the administration of the Fund. This, the husband says would certainly have included knowing how much was in the fund and who the members were.

121 The wife's response to these allegations is that she was asked to sign documents on the run. She was at no stage invited to any Annual General Meeting or any of the less formal meetings with accountants. She was very busy. She trusted the husband. Inferentially she suggests she did not read the documents she signed for the companies or otherwise. She does not specifically state so.

122 There are differing decisions of the Court in relation to whether knowledge can be imputed in circumstances where a party has had the opportunity to acquire relevant knowledge but choses not to.

123 In Weiss v Weiss (unreported, Baker J, 22/03/96) the wife claimed that a consent order should be set aside under s 79A because inter alia she did not have sufficient knowledge of the husband's superannuation entitlement. In the declining the application, Baker J said that:

"In Suiker and Suiker (supra), the Full Court, having considered passages from Gebert and Gebert (supra), Clifton and Stuart (1991) FLC 92-194 and Harris and Calladine [1991] HCA 9; (1991) FLC 92-217, said at page 80,471: -

"It is implicit in these passages that the consent to an order must be an informed consent. The consent to the order is itself part of the judicial process on which the Court places reliance. If that consent is based on misleading or inadequate information, then there may be, in our opinion, a miscarriage of justice either by reason of the 'suppression of evidence' or by reason of 'any other circumstance'." (my emphasis)

It is true that the consent to an order must be an informed consent, for the reason that the fact that parties who are legally represented are prepared to consent to an order is likely to either induce the making of the order or convince the person who makes it that the order was in all the circumstances just and equitable.

Although the documents presented to the Court were somewhat lacking in detail in regard to the respective entitlements to the parties' superannuation, the source information had been read by both parties, they were aware of the contents and the information at all relevant times was in the wife's possession and control. In my opinion therefore, the wife's consent was an informed consent based upon actual knowledge of each party's superannuation entitlement and, a fortiori, no miscarriage of justice has occurred. For all the above reasons therefore, the wife's application will be dismissed."

124 The facts referred to by Justice Baker in the above quote were that it was a practice in the parties household that the mail which came to the house was opened and placed by the wife in a certain location known to each party. The parties could each have free access to the correspondence and did so. At the time the parties entered into the consent orders the details of the husbands superannuation were available to the wife insofar as she was in occupation of the former matrimonial home and the husbands last superannuation statement was located in the usual place in the house. The fact that the husband had not specifically disclosed the details of his superannuation in documentation provided to the wife by the husband at the time the consent orders were signed was insufficient to warrant a finding of fraud or non disclosure.

125 In Suiker and Suiker (1993) FLC 92-436 the wife claimed that a consent order should be set aside under s 79A because she was unaware that the husband had applied for redundancy and later received redundancy retirement payments. The wife had made no inquiry, and there was no discussion about what the husband's entitlement would be if he retired in the near future or at any later time. As referred to in the decision of Weiss the Full Court in Suiker held that consent must be informed, and thus not based on misleading or inadequate information.

126 It is worthy of note that in the case of Suiker the husband did not disclose to the wife that he had applied to be considered for a redundancy prior to the signing of the consent orders. Nor did the husband disclose that he had the opportunity to change his superannuation arrangements so as to become a member of another fund which, no doubt, could provide additional benefits again not known to the wife. To this extent the case is quite distinguishable from the case of Weiss.

127 The passage in Suiker was more recently followed by the Full Court in the similar case of Pelerman and Pelerman [2000] FamCA 881; (2000) FLC 93-037.

128 In Pelerman the wife appealed against the decision of Justice Jerrard who had dismissed her application for relief under section 79A and subsequent variation of property orders made by consent. The trial Judge had determined that as a matter of law the particulars provided by the wife to support her application based upon allegations of "duress", "suppression of evidence" or "any other circumstance" could not be established.

129 The Full Court granted the appeal. In so doing the Court said that the husband had failed to disclose his financial circumstances when the consent orders were made and that may indicate that the wife had suffered a miscarriage of justice. Further the Full Court said that the failure to disclose his financial circumstances created a circumstance where the wife could not make an informed consent. They further considered there may have been a suppression of evidence.

130 Although in Pelerman it appears that the wife was represented at the time the consent orders were made there is no suggestion that she was a director of any companies involved in the family enterprise or that she could be said to have any actual or constructive knowledge of husbands financial position.

131 McIntyre and McIntyre (1994) FLC 92-468 is a decision of Justice Finn.

"Three-and-a-half years after consent orders for property settlement were made by the parties the wife applied for: either an order under sec 79A of the Family Law Act that the orders be set aside on the basis that there had been a miscarriage of justice within the meaning of sec 79A(1)(a); or an order (under O 36A r 6(2) of the Family Law Rules) extending the time for her to seek review of the exercise of discretion by the Registrar in making the consent orders.

The parties married in 1965 and separated in 1988 when the wife left the former matrimonial home. The four children of the marriage remained with the husband. It was the wife's position that the parties did not discuss property settlement arrangements but the husband maintained that they did and that he prepared a document setting out the agreement which the parties had reached and gave a copy to the wife. The husband also gave a copy to his solicitor who drew up minutes of proposed consent orders to give effect to the document. The solicitor said that the parties came to his office and read the minutes before signing. He said that he informed the wife that she could obtain independent legal advice. Pursuant to the orders the husband retained about 90% of the parties' net assets.

It was the wife's case that the orders should be set aside under sec 79A on the basis that the facts of the case gave rise to an inference that a miscarriage of justice had occurred, in that the orders in this case were so unreasonable that the Court should find that some matter had so affected the wife's reasoning that the orders were vitiated. In support of this reliance was placed on certain passages of the judgment of the Full Court in Gebert and Gebert (1990) FLC 92-137. The wife claimed that she had not understood the nature and effect of the minutes and had she understood that orders would be made in the terms of the minutes she would not have signed the document. She said that it was not explained to her that orders would be made in the terms of the minutes and that she was not told that she could obtain independent legal advice.

133 Her Honour accepted the husband and his solicitor on the issue of whether the wife was offered the opportunity to seek independent legal advice.

134 In relation to informed consent, Finn J quoted the following passage from Suiker:

"It is implicit in these passages that the consent to an order must be an informed consent. The consent to the order is itself part of the judicial process on which the Court places reliance. If that consent is based on misleading or inadequate information, then there may be, in our opinion, a miscarriage of justice either by reason of the 'suppression of evidence' or by reason of 'any other circumstance".

135 In considering the application of those words Finn J reasoned that:

"In Suiker the Court was concerned with the lack of factual information on the part of the aggrieved wife regarding the husband's financial resources. In this case, I am concerned with a lack of knowledge on the part of the applicant wife regarding the legal effect of the minutes of orders which she signed. Notwithstanding that ignorance of the law has traditionally been held to be no excuse, I consider, in the light of the above-quoted statement by the Full Court in Suiker, that in circumstances, such as the present case, where a party, who was not legally represented, alleges that he or she had no knowledge of the legal effect of minutes of consent orders when he or she signed such minutes, and there is no evidence to support a finding that the party did have such knowledge, that there could well be a miscarriage of justice within the meaning of Section 79A(1).

However, before a miscarriage of justice can finally be established in circumstances such as the present, it is necessary to consider the issue of the aggrieved party's decision not to take independent legal advice when that option was raised with that party (as it was in this case) by the solicitor for the other party prior to the signing of the minutes of consent orders. In a case where negotiations between the parties had continued over a substantial period of time following separation and/or where the aggrieved party had been given more than one opportunity to seek legal advice but had failed to obtain such advice, then it would, in my view, be difficult for that party to establish a miscarriage of justice. However, and again in my view, the issue must be far more doubtful in a case such as this where the negotiations for the property settlement were commenced and concluded over a period of only a couple of weeks immediately prior to separation, and where it was apparently only suggested to the wife on one occasion, and then at the eleventh hour so to speak, that she could take her own independent advice.

that the wife cannot offer an explanation for the delay such as would justify the involvement of the husband in litigation at this time;

that notwithstanding a miscarriage of justice may have occurred at the time of the making of the consent orders, the wife has not demonstrated any hardship (over and above the loss of her entitlement to a just and equitable property settlement) which would be suffered by her if the original orders were allowed to stand; and

that while there might not be prejudice to the husband in the sense of the financial detriment to him if new property settlement proceedings were commenced at this time, it would be unjust to the husband to allow further proceedings to be conducted so long after the original orders given the financial and other responsibilities he has borne in relation to the children of the marriage.

Ultimately the issue of the need to do justice between the parties coupled with the public interest in bringing an end to litigation must govern the exercise of the discretion under Section 79A. Notwithstanding the likely original miscarriage of justice so far as the wife is concerned, the wife has not convinced me that the interests of justice weigh so heavily in her favour, and accordingly against the husband, that I should permit a re-opening of the matter given that a relatively long period of over three and a half years has elapsed between the making of the consent orders and the wife's application to reopen the matter. The husband should not, after the passage of some three and a half years, be required to share the consequences of the wife's failure either to obtain such advice or to act upon it, particularly given his responsibility for the children of the marriage over the time in question, and in circumstances where the wife has failed to demonstrate financial hardship to the extent that I consider she must."

138 In the Full Court decision of Tisdale v Tisdale [2003] Fam CA 1689 (unreported) Kay, Holden and Mullane JJ dealt with an appeal against the setting aside of orders under section 79A. Ultimately the wife's application under 79A was dismissed on the ground, as found by Holden and Mullane JJ that she could not establish that the value of the husband's assets were not as he asserted at the time of the orders.

139 One of the areas argued by the appellant husband was that the wife was at all relevant times legally represented and signed a written instruction to her solicitors advising that, contrary to their advice she wished to enter into the orders.

140 The following extract is from the decision of Mr Justice Kay with whom Holden and Mullane JJ agreed on this aspect.

"185. This brings us back to what on the face of it seems to be the true gravamen of Ground 3, namely whether in the circumstances it was appropriate to accede to the wife's application given that she had independent legal advice and chose effectively to ignore that advice. His Honour said:

"327. One factor which comes into consideration not only when considering the matter of duress but in each one of the other elements fundamental to s79A(1)(a) i.e. fraud, suppression of evidence and any other circumstance is the fact that at all material times the wife had legal advisers - at times having two distinct sets of legal advisers. The husband sees this as a major factor in his favour in relation to every element of the wife's case. The wife predictably sees it differently. Looking at this factor in relation to the present issue of duress, the wife's ability to consult with legal advisers and to receive advice and to a limited extent, act on advice from those lawyers, does not appear to me to be inconsistent with the forms of duress the wife alleges.

328. What the wife says virtually is: -

I filed an application for property settlement, the husband put forward some terms, I negotiated with him and achieved some improvements, the husband exerted a lot of verbal pressure on me to consent to the terms arrived at. In the main she says 'I was worn down by the constant verbal abuse in my home and by telephone'.

329. It seems to me that all of these matters point to a finding that the wife is justified in her claim that the husband did subject her to an 'improper motive for action' and that 'illegitimate means of persuasion were used' to obtain the wife's consent to the orders.

329 Considering all these matters, the wife, despite the fact that she was at all times assisted by lawyers, was not in a condition where she should be seen, when she signed the consent terms, as able to give a free and unfettered consent to the terms."

The contradictory evidence was to be found in the solicitor's diary notes, which included the following entry (AB 3327):

"She was lucid, even tempered, relaxed. She even joked that she can't wait to leave a message on H's answer machine to the effect she had signed as it would be a good 40th birthday present for him.

She signed docs after I went through the provisions of s 75(2) and s 79(4)."

"She said that she understands that what she's agreeing to is probably not a good deal but she's prepared to sign a waver acknowledging that. She'd prefer me to arrange a new set of docs from Bulloch."

188. On 31 October 1996 the wife executed a document addressed to her then solicitors Sheppard and Sheppard which was headed "Instructions" and included the following:

"I acknowledge that you have advised me that it would be prudent for me to engage an accountant to analyse the financial statements of T & M Industries Pty Limited and T & M Industries (Australia) Pty Limited to ascertain the value of those companies. I acknowledge that you have advised me that you are not able to offer an opinion as to the value of those companies.

...

I also acknowledge that you have expressed concern that my husband is urging me to enter into this arrangement even though we have only been separated for approximately four months

....

I understand that I will have no further claims upon any assets or financial resources in which my husband may have an interest nor to able (sic) to claim maintenance from him for myself once these terms become orders of the Family Court..."

189. "Holland and Holland and Prowse and Prowse (1995) FLC 92-557; (1994) 18 Fam LR 348 are both cases in which the Full Court upheld the dismissal by the trial Judge of an application to set aside orders where the applicant had consciously decided to enter into an agreement after receiving legal advice. Ultimately in Holland, the Court rejected the appeal, saying at 77,341:

"It is impossible to conclude that any lack of information on the part of the wife or her solicitor led to the acceptance of the consent order..."

190. The Court said that whilst the appellant wife might have received a better result had she proceeded to trial, that of itself was not sufficient. In any event, in Holland the wife still retained maintenance entitlements and that seemed somehow to ameliorate the harm which she might otherwise have suffered by not being able to relitigate the property case.

192.

At the trial of her s 79A application, Strauss J concluded that had the matter initially gone to trial the wife would have received significantly more than that to which she consented.

193.

The procedure adopted by the trial Judge was to assume that there was a miscarriage of justice and then to determine whether or not it was appropriate to set the consent orders aside in all the circumstances of the case. He concluded it was not. The Full Court accepted the trial Judge's statement that:

"the mere fact that there has been a miscarriage of justice does not seem to me to mean that the court must vary the order or set it aside."

194.

His Honour had cited with approval a passage from Gebert v Gebert (1990) FLC 92-137 at 77,937; (1990) 14 Fam LR 62 at 68 where the Full Court had said effectively that if a party had made a conscious decision to enter into an agreement free of duress it would be inappropriate to interfere with that agreement on "a paternalistic view as to which might or might not have been in his best interests".

195.

Strauss J had identified a number of circumstances which might weigh appropriately on the exercise of the discretion, being:

"Lack of any or any proper representation or advice, concealment by the husband or ignorance by the wife of relevant financial matters, pressure on or undue persuasion of her, or unequal bargaining power on her part, and no doubt there may be many such circumstances."

His Honour found that none of them existed in the Prowse case.

196.

The Full Court concluded that s 79A gave to a trial judge a clear discretion to make or refuse to make an order in the event that the judge was satisfied there was a miscarriage of justice. Then, after reference to the well known authorities on the exercise of judicial discretion, their Honours concluded that in the exercise of a discretion there was an onus on the applicant to demonstrate that it was appropriate to exercise their discretion in the applicant's favour. Ultimately their Honours found no error.

197.

In the case before us, in the exercise of his discretion the trial Judge identified the features that were preying upon his mind. He was conscious of the importance of bringing an end to litigation expressed in Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1; (1979) FLC 90-674; (1979) 5 Fam LR 289, but he concluded that all of the factors, particularly the duress and the unfair result, weighed heavily in favour of the exercise of his discretion.

198.

In determining to act upon those principles it has not been demonstrated to me that any error of approach has occurred. It cannot be said that the result is plainly unjust. In my view, the appeal against the exercise of discretion based upon his Honour's findings must fail."

141 From the above it may be concluded that even where there are grounds established under section 79A to warrant setting aside the orders the Court may exercise its discretion against doing so based upon the conclusion that each party was at the time legally represented and that parties must be free to make their own bargains."

142 In the case before me it is not really possible for me to consider whether the result was manifestly inadequate as that would involve a determination of the value of the parties respective assets and resources at the time of the orders being made. It would also involve a consideration of the parties various and comparative contributions to the assets and the marriage.

143 It seems to me that the Court has not really determined how much action, if any, a represented party to a consent property order, such as the wife in this case, should be expected to take. Where the wife was a director of each relevant corporate entity, the Trustee of the Superannuation Fund and physically working in the companies on a full time basis, where she has a legal right, outside of the Family Law Act, to inspect any relevant company document. Where she has legal obligations as a Trustee. Then, in those circumstances, in the absence of any other relevant fact, why should this Court not expect her, as a matter of ordinary prudence, to take at least the most basic steps of looking at any such documents as are reasonably available to her? If she doesn't know what companies she is a director or shareholder of then these matters are easily searched through publicly available records.

144 It seems to me that the concept of "common prudence" requires some recognition. If a person choses not to exercise "common prudence", in the absence of any fact or circumstances, there should be a presumption arise which operates against such a person should it later be asserted "I didn't know".

145 In the current case the wife did know she was a director of the two corporate entities. She says she didn't know she was trustee of the Bhoe Pty Ltd Staff Superannuation Fund. Her statements to the effect that she signed documents put before her without reading them, as she trusted the husband, would have to be tested if the case was to run. Her inferential assertions that she knew little about the management and corporate fiscal positions of the companies would also need to be tested if the case ran. Such assertions would appear to be at odds with her other evidence as to her role in the company however, I form no concluded view about this.

146 In my opinion the task for the wife in convincing the Court that it would be sufficient to warrant the Court setting aside the property orders under section 79A if the Court was satisfied the result was manifestly inadequate, where the wife was legally represented and where it could not be established that such representation was so inadequate as to amount to no representation at all, is significant.

147 The broad view I have of the wife's application is that it does not appear to be an obvious case for setting aside orders under section 79A. It seems to me that as she was a director of both Bhoe Pty Limited and Norman Management Services Pty. Limited at the time the orders were made and also Trustee of Bhoe Pty Limited Staff Superannuation Fund she may well be imputed with knowledge in the same way the wife was in Weiss. As she was represented she had the avenue to seek further information about these entities. It is not, as I understand it, suggested by the wife that the husband or the Companies Accountant was being obstructive in the provision of any information sought by her. As a director she had a right to access to the company records. She had obligations at law. She also had available to her the injunctive provisions of the Act in the event of her experiencing any obstructive behaviour on the part of the husband to her attempting to access any relevant company or superannuation fund documents. As I have said, there seems to be no definitive judgement of the Full Court which appears to cover this situation.

148 Further, a matter which in my opinion may raise a difficulty for the wife, is, the letter from her solicitor to her dated the 20th of December 1988 confirming the making of the Court orders and enclosing documents. In that letter Mr. F. D., the wife's solicitor says as follows:-

"We confirm our concern that settlement was reached without either party disclosing to the other the formal statement of they(sic) respective financial circumstances, however we note your instructions that you do not require any further information in that regard and that you are satisfied with the settlement as reached,"

149 I understand the wife's case to be that she trusted the husband to make a proper settlement with her and not to conceal any relevant information from her.

150 This is not a case where the applicant husband asserts the wife could not succeed as a matter of law. He effectively concedes that although it is unlikely she would succeed in convincing the Court to set aside the consent orders such a course is not impossible. If the husbands' case was that the wife could not succeed he would have brought a summary dismissal application.

151 I understand the wife's reliance upon decisions of the Full Court such as Pelerman and Suiker.

7. Is the delay in commencing the proceedings and the prejudice thus caused to the husband such that it would amount to an abuse of process to allow the case to continue?

152 In my opinion the conclusions already reached by me would cumulatively lead to the conclusion that to allow the wife to proceed with the action would amount to an abuse of process.

153 The wife's case is in part, as I understand it, that she did not commence the proceedings in 1989 when she says she discovered for the first time that she had superannuation, because she was not advised to do so by any lawyer engaged by her at or about that time. In deed, again as I understand her case, part of it is that she was not competently advised at the time she received her superannuation payment or shortly thereafter. This cannot be said to be any fault of the husband. If the wife was incompetently advised she may well have another avenue for redress. As to whether she would be successful or not I can reach no conclusion.

154 Even if the explanation given by the wife was seen to be reasonable to explain delay per see, the consequences of the delay to the husband and to the consideration of whether the Court can do justice, to both the parties as a result of the delay, is the matter to be addressed in this case.

155 Having found that in essence it would be unlikely the husband would be able to obtain evidence of matters crucial to meet the wife's allegations, it seems to me that in the circumstances of this case it would be an abuse of process to allow the proceedings to continue.

156 Having concluded that the husband can call evidence to support his application for a permanent stay in this case. Having determined the circumstances in which the Court should exercise its' jurisdiction to grant a permanent stay. Having reached conclusions as to the impact upon the husband of the wife's delay in instituting the substantive proceedings. Having determined the Court can rely upon a presumption and upon evidence in relation to considering the consequence to the husband of the wife's delay. Having concluded that it would amount to an abuse of process to allow the wife to continue with the substantive proceedings. I now have to consider whether, overall, I should exercise the discretion of the Court and grant the order sought by the husband for a permanent stay of the wife's application under section 79A.

157 In considering whether to exercise the Courts' discretion it seems to me the Court should consider a number of matters. They include:-

(a) the framework of the Act,

(b) is there anything particular about the nature of the proceedings that, when coupled with the alleged facts which are said to give rise to the abuse, compels a conclusion that the proceedings should not be stayed.

(c) the merit of the wife's 79A application.

(d) the balance of prejudice as between the parties of granting or declining the permanent stay,

(e) any aspect of the wife's explanation for delay which would make it unjust to grant the stay in favour of the husband,

(f) is this an exceptional or extreme case.

(g) have the proceedings been turned into instruments of injustice and unfairness?

(h) would it bring the administration of justice into disrepute among right-thinking people if the proceedings were allowed to continue?

(i) any other fact or circumstance which would otherwise compel the Court, as a matter of justice, to grant or refuse the stay.

(b) is there anything particular about the nature of the proceedings that, when coupled with the alleged facts which are said to give rise to the abuse, compels a conclusion that the proceedings should not be stayed.

158 It seems to me that the above two considerations can be dealt with together.

159 In the general course of litigation in the Court, in "financial matters", the Act prescribes a time limit of one year from the date of a decree absolute being granted in which to commence proceedings. Thereafter leave is required to be given by the Court before any such proceeding can be commenced. Further, section 81 of the Act is important in the context of this application to permanently stay proceedings. That section requires the Court "as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them."

160 Once a final property order has been made there is no further jurisdiction to make another property order otherwise than by the consent of the parties. Taylor v. Taylor [1979] HCA 38; (1979) FLC 90-674.

161 Section 79A is a remedial section in that it provides for a method of redressing an injustice which might arise as a result of the mischief's which are detailed in the section. There is no time limit imposed for the bringing of an action under the section.

162 Section 81 speaks of finality of proceedings between parties. There are good reasons for this, including, that people need to get on with their lives unconstrained by the burden of never ceasing legal proceedings which are both costly and emotionally draining. Litigation comes at a high price to the community at large. The administration of justice through the Courts is costly and so, as a matter of public policy, should be reserved for essential cases. Courts all around the world are focussing upon streamlining procedures to provide quicker and cheaper justice. Thus, it seems to me, that when a party seeks to invoke jurisdiction and commence proceedings, in circumstances where the Act and the Court would normally see the parties as having exited the system, it is incumbent on those who seek to use the Court in this way to show a clear and timely action. This statement should not be seen to disregard the well defined obligations of parties to make full and frank disclosure of relevant facts. Parties need to be able to make an informed decision and therefore reach true agreement based upon proper and accurate information. Further, this statement is in no way to be seen to undermine the action which the Court would normally take when faced with a case of fraud.

163 Thus when, as in this case, a litigant comes to the Court many years after the orders were made and says: "I did not know, or I was not told" of a particular fact or circumstance and "had I known I would never have entered into the orders", the Court must consider, as an important part of exercising discretion, the impact upon the respondent to such a proceeding in being able to properly defend same when the timing of the action is entirely in the hands of the applicant. It is this process, it appears to me, which clearly calls into play the inherent jurisdiction of the Court to properly control its' own proceedings and not to allow the proceedings, as such, to turn "justice into an injustice". This occurs when the delay in commencing the proceedings creates a greater prejudice to the respondent than to the applicant. This is, of course, subject to the particular facts of the case. There may be conduct on the part of the respondent to a section 79A application which would vitiate the adverse effect of lengthy delay in commencing proceedings.

164 The nature of the proceedings brought by the wife under section 79A are remedial. So to is the application brought by the husband.

165 The only aspect relating to "the nature of the proceedings", which is worthy of consideration is the fact that section 79A proceedings should be brought sooner rather than later. One of the matters which would, in the normal course of exercising the discretion of the Court under section 79A, be taken into account, is any delay in bringing the proceedings after the cause for the action became known to the applicant. Failure to adequately explain delay can be fatal to the exercise of discretion even where the ground for invoking the discretion has been made out. In this regard see McIntyre and McIntyre (1994) FLC 92-468.

(d)

the balance of prejudice as between the parties of granting or declining the permanent stay,

166 The prejudice, as I see it for the wife is that she may not have the opportunity to receive what should have been a proper distribution of the parties assets in 1989. She would also have lost her costs invested in the proceedings thus far and potentially face an order for costs, if one is sought by the husband.

167 The prejudice for the husband is that he is faced with having to prove the wife did have knowledge of the parties' superannuation at the time the orders were made and knowledge of the parties financial circumstances generally. He also has to be able to satisfy the Court that the parties assets and liabilities at the time of the orders were as stated by him and were accurate.

168 In the exercise the burden will, in my opinion, fall hardest upon the husband because the wife's evidence to support her assertion that she had no actual knowledge of the parties superannuation benefits is a statement of fact by herself. There would possibly be some corroboration from the solicitor acting for her at the time the orders were made, however, to date, he has not filed any affidavit. There is also the spectre of the wife being reluctant to call her former solicitor because she may yet seek to sue him. In addition to that there is the likelihood that the solicitor would have only a vague recollection of the matter and would have to rely upon his notes or correspondence created at the time if they still exist. Having regard to some of the evidence he may no longer have his notes. He would in such circumstance have an unreliable recollection and therefore be of little assistance to the Court and to the wife.

169 For the husband to successfully prove the point he will need to produce some documentary evidence which is compelling, or a reliable witness such as the company accountant, who could confidently give evidence confirming the wife's actual knowledge of the superannuation entitlements of herself and/or the husband at the time the orders were entered into. Likewise evidence that the wife knew of the relevant companies financial position. This seems to be an unlikely event given the time which has elapsed since the orders were made.

170 The husband also will have to bare the legal cost of defending the proceedings. Even if the wife were ultimately unsuccessful in the action there is no certainty that the husband would be the recipient of a costs order in his favour. From the facts I know of the case already, the suggestion seems to be that the husband's present financial circumstances are vastly superior than the wife's. Again if the wife was able to show some evidence of suppression of evidence but none the less was unsuccessful in obtaining a further property order the husband may not succeed in an application for the wife to pay his costs.

171 My conclusion is that, on balance, the prejudice is greater to the husband than to the wife. That is that the prejudice to the husband of allowing the wife to proceed with her action is greater that the prejudice to the wife of granting the permanent stay.

(c) the merit of the wife's 79A application.

172 I have already dealt with this earlier in these reasons. I will take into account my conclusions in relation to same.

(e)

any aspect of the wife's explanation for delay which would make it unjust to grant the stay in favour of the husband,

173 There is nothing in the wife's explanation for delay which, in my opinion, impacts upon this consideration. The type of fact which might so impact would be a circumstance where the wife had directly brought her grievance to the attention of the husband some time ago and the husband had promised to remedy the situation and requested the wife to refrain from commencing proceedings. No doubt there are countless other explanations which may have the same effect.

(f)

is this an exceptional or extreme case?

174 This is a difficult question to answer. Somewhere there has to be a "line drawn in the sand" and a conclusion reached that one side of the line is exceptional or extreme and the other is not. It seems to me to be an exceptional or extreme case if the delay is lengthy and the potential for injustice to the respondent to the substantive proceedings is great as a consequence of the delay.

175 In this case I conclude that the consequence to the husband of injustice as a result of the delay is high. The delay is in my opinion lengthy. I therefore conclude that it is an exceptional or extreme case.

(g)

have the proceedings been turned into instruments of injustice and unfairness?

176 Like the last mentioned consideration I conclude that if the proceedings are permitted to continue then the probability for the proceedings to be turned into instruments of injustice and unfairness is high. This follows the conclusion that it would be unjust to permit the wife to proceed with the case after such a long period of time where the consequence of the delay is to make it highly probable that the type of evidence which may have been available to the husband to defend the proceedings successfully at an earlier time is no longer available.

(h)

would it bring the administration of justice into disrepute among right thinking people if the proceedings were allowed to continue?

177 I think the answer to this question is in the affirmative. It follows from all the other conclusions I have reached that, if they be correct, then it would create an injustice to the husband and an abuse of the Courts process to permit the proceedings to continue. If the Court permits proceedings which are an abuse of process to continue. If the Court does not positively control its' own proceedings in a fair and equitable manner then it would be likely to bring the administration of justice into disrepute.

(i)

any other fact or circumstance which would otherwise compel the Court, as a matter of justice, to grant or refuse the stay.

178 There is, in my opinion no other fact or circumstance which needs to be considered under this subject.

179 I conclude that, on balance, that the husband has made out a case for a permanent stay. Although there is not an example, which I can find in the Court, where an order for permanent stay has been made based upon the grounds that it would be an abuse of process to allow the case to proceed, I conclude that on the balance of all the criteria considered in these reasons, the pendulum swings in favour of the husband. It is therefore an appropriate case in which to grant the remedy sought by the husband.

1. That the proceedings comprised by the wife's application filed the 30th of April 2002 be permanently stayed.

2. I list the husband's application for costs, as sought, at a time to be arranged by the legal representatives for the parties with my Associate.

[1] s.21(2) of the Act.

[2] [1979] HCA 38; (1979) 143 CLR 1 per Gibbs J at p6.

[3] (1986) FLC 91-753 per Nygh J at p75,491 citing Strauss J in Wilmoth v Wilmoth (1981) FLC 91-030 at p76,287.

[4] (1994) 181 CLR 251 at 255.

[5] (1993) 177 CLR 379 at p392.

[7] [1989] HCA 46; (1989) 168 CLR 23.

[9] [1960] HCA 40; (1960) 104 CLR 186 at p201.

[11] [1989] HCA 21; (1989) 166 CLR 486 at 502-504.

[12] [1987] HCA 23; (1987) 162 CLR 612 at 639.

[13] (1988) 85 ALR 640 at 649-651.

[14] [1938] HCA 34; (1938) 60 CLR 336.

[15] [1992] HCA 66; (1992) 110 ALR 449.

[16] (1986) 6 NSW LR 534 at 538.

[17] (1992) 29 NSWLR 336 at 345 and 349.

[19] (1975) 132 CLR 301.

[22] [1987] HCA 23; (1987) 162 CLR 612 at 639.

[23] [1989] HCA 21; (1989) 166 CLR 486 at 502-504.

[24] [1988] HCA 32; (1988) 165 CLR 197 at p247.

[25] [1989] HCA 21; (1989) 166 CLR 486 at p. 502-504.

[26] [1996] HCA 25; (1996) 186 CLR 541.

[27] Prowse v Prowse (1995) FLC 92-557 at p. 81,566; Official Trustee in Bankruptcy v Donovan (1996) FLC 92-703.

[28] [1947] HCA 21; (1947) 74 CLR 492 at 505 per Dixon J.

[31] R. v Lawrence [1982] AC 510 at 517, per Lord Hailsham of St. Marylebone LC.

[32] [1972] USSC 146; (1972) 407 US 514 at 532.

[33] Walton v Gardiner (1993) 177 CLR 378.

[34] Jones v Bellgrove Properties Ltd [1949] 2 KB 700 at 704.

[35] R.B. Policies at Lloyds v Butler [1950] 1 KB 76 at 81-82.

[36] It is submitted that this is consistent with the guiding mandate applied as a consequence of s.81 of the Act to all proceedings under Part VIII.

[37] Butterworths, Fourth Edition, Meagher, Heydon and Leeming, at para 36-020.

[38] Bright v Legerton (No.1) (1861) 2De G F & J 606 at 617; [1861] EngR 144; 45 ER 755 at 760; Matthew v Brise [1851] EngR 735; (1851) 14 Beav 341 at 346; [1851] EngR 735; 51 ER 317 at 319; Watt v Assets Co. [1905] AC 317 at 329, 333; Miller's Executrix v Miller's Trustees 1922 SC 150.

[39] [1975] 1 NSWLR 8.

[40] [1976] 1 NSWLR 729.

[41] [1989] HCA 4; (1989) 167 CLR 316 at 330.

[43] R. v Lawrence [1982] AC 510 at 517, per Lord Hailsham of St. Marylebone LC.

[44] [1972] USSC 146; (1972) 407 US 514 at 532.

[45] Walton v Gardiner (1993) 177 CLR 378.

[46] Jones v Bellgrove Properties Ltd [1949] 2 KB 700 at 704.

[47] R.B. Policies at Lloyds v Butler [1950] 1 KB 76 at 81-82.

[48] It is submitted that this is consistent with the guiding mandate applied as a consequence of s.81 of the Act to all proceedings under Part VIII.