HIS HONOUR: On 4 July 2017, the plaintiff, Jabbar, filed a statement of claim in which she sought damages against her former husband, the defendant, Gade.
The statement of claim was amended on 7 December 2017 ("the amended statement of claim").
An amended defence was filed on 12 July 2019 (a notion of motion filed by the defendant to dismiss parts of the statement of claim was dismissed on 30 May 2018: Jabbar v Gade [2018] NSWSC 836).
The amended statement of claim was founded upon five claims of assault and battery by the plaintiff, against the defendant, and a claim for damages as a result of those alleged incidents. The pleaded assaults were as follows:
1. 25 June 2007 at City B, India;
2. 9 December 2007 at City B, India;
3. 2 March 2013 at Suburb A, New South Wales;
4. on or about 16 April 2014 at Suburb A, New South Wales; and
5. on or about 14 July 2015 at Suburb A, New South Wales.
The defendant admitted the assault of 2 March 2013 but otherwise denied the other assaults. The defendant relied upon a limitation defence with respect for all the pleaded assaults, save for the pleaded assault of 14 July 2015.
The hearing of the matter commenced on 29 July 2020. The plaintiff was self-represented. The defendant was represented by Mr M Weightman of counsel. The matter proceeded over five days for the taking of evidence ranging from 29-31 July 2020 and 22-23 September 2020. The plaintiff and the defendant both gave evidence and were cross-examined. After the filing of substantial written submissions, the matter was listed for oral submissions on 3 February 2021. At the close of oral submissions on 3 February 2021, the Court reserved its decision upon the receipt of chronologies. The chronologies were received from the defendant on 25 February 2021 and the plaintiff on 5 March 2021, at which date judgment was reserved.
The Court gave considerable latitude to the plaintiff, as a self-represented litigant, in prosecuting her claim, particularly in respect of her claim for damages, about which a considerable amount of evidence was filed by the plaintiff (overall, the plaintiff's evidentiary case was quite voluminous).
A significant issue with respect to the question of damages was the relevance of the plaintiff's evidence concerning earlier proceedings in the various jurisdictions, with respect to the family law matters.
The plaintiff's evidence in that respect was, for the most part, admitted as provisionally relevant so as to permit examination, in the light of the entirety of the parties' cases, and making allowance for the self-represented status of the plaintiff, the contentions advanced by the plaintiff that the material was relevant to her damages claim. Ultimately, that question may require resolution by reference to a large volume of material that may have a rather tangential connection to the issues in the primary proceedings, including the issue of damages, which may also be possibly relevant in some respects as to a continuing effect of one or more of the alleged assaults (some of which were alleged to have occurred during the course of the marriage). That course was also taken as result of the lack of submissions advanced by the plaintiff at the time questions arose about admissibility, which clearly identified how the evidence sought to be adduced may be relevant (and the absence of a clear delineation between various classes of evidence).
It should be acknowledged, in final submissions the defendant contended that the family law material had been used by the plaintiff as an abuse of the Court's process to complain about the conduct of earlier family law proceedings and an attempt to relitigate the issues which had occupied a great deal of time in those proceedings. It was submitted the material should ultimately be declared irrelevant but, if admitted, the material went to the question of credit.
I shall briefly transverse some of the evidence which fell in that category and, in doing so, provide a background or context for the issues which require consideration in this judgment.
The parties were married in India on XX 2002. Their daughter was born in 2006 and their son was born, after migration to Australia, in 2012 ("the children").
In 2015, the defendant filed a parenting application in the Federal Circuit Court. There then ensued extensive family law proceedings in the Federal Circuit Court, Federal Court of Australia and High Court of Australia, which broadly ranged across the following:
1. the making of interim orders for children to live with the defendant on 31 August 2015: Gade & Jabbar [2015] FCCA 3607;
2. the commencement of divorce proceedings in 2016;
3. the amendment of parenting orders, including plaintiff being restrained from custody of her children: Gade & Jabbar (No 5) [2017] FCCA 662;
4. on 11 May 2018, the making of final orders in the Federal Circuit Court that the children were to reside with the defendant on a final basis: Gade & Jabbar (No 11) [2018] FCCA 1056; and
5. subsequent interlocutory and appellate proceedings.
On 16 August 2019, the plaintiff declared a vexatious litigation for the purpose of the Family Law Act 1975 (Cth): Jabbar & Gade (No 22) [2019] FCCA 2186.
One issue consistently arising out of the contested evidence out of and connected to proceedings in the Federal Circuit Court and Family Court was the issue of an audiovisual recording of herself and her children which the plaintiff contended was fake. That issue was highly contentious in the various family law proceedings and remained so in these proceedings because of contested images of the plaintiff which the defendant contended represented the plaintiff assaulting the oldest child.
The plaintiff had consistently sought access to the mobile phone for forensic analysis both with respect to those images and a text message alleged to have been received on the phone from the plaintiff, to demonstrate they were "fake".
By an amended notice of motion ("the Motion") filed 5 February 2021, the plaintiff sought the following:
1. Leave to re-open the case.
2. Plaintiff is allowed to file further amended "Statement of Claim".
3. Matter listed as soon as possible.
(It may be noted, there was no change in the relief sought between the original notice of motion and the amended notice of motion, save that the amended notice of motion was signed by the plaintiff).
By the Motion, the plaintiff sought to further amend the amended statement of claim and to file further evidence. The plaintiff filed two written submissions in support of the Motion on 17 March 2021 and 6 April 2021, respectively (a further amended statement of claim was attached to the latter submission).
In oral submissions on the Motion, the plaintiff made clear that the Motion was primarily directed to a further amendment of the statement of claim, although she also sought adduce further evidence flowing from the amended claim.
The application was supported by the plaintiff's affidavit evidence of 5 February and 5 March 2021, respectively, and documentary evidence. The affidavit of 5 February had three annexures and the affidavit of 5 March had 33 annexures.
The plaintiff tendered four further documents on the Motion as follows:
1. Application for an Apprehended Domestic Violence Order by the plaintiff;
2. Advise of Court Result (document concerning the AVO application);
3. Transcript of proceedings before Magistrate Crews of 20 April 2021; and
4. Correspondence from NLS Law to the plaintiff dated 21 May 2021.
All of the evidence led on the Motion was intended for the use in the primary proceedings.
The additional pleadings in the further amended statement of claim were summarised in the plaintiff's written submissions on the Motion of 17 March 2021. She stated that she had added six pleadings which were said to relate to the following "incidents":
1. In August 2015, defendant took parties children from their schools without plaintiffs consent; went to an unknown location. This causes severe stress and substantial damage to the plaintiff.
2. In August 2015, defendant produced fake evidence of text messages dated 25 July 2015 against plaintiff in Federal Circuit Court, Newcastle. This causes severe stress and substantial damage to plaintiff.
3. In February 2016, defendant produced another fake evidence (a fake video dated 9 March 2013) against plaintiff in Federal Circuit Court, Newcastle. This causes severe stress and substantial damage to plaintiff.
4. In February 2016, defendant made a fake complaint to NSW Police again plaintiff. This causes severe stress and substantial damage to plaintiff.
5. In February 2017 and in July 2017, defendant refused to give his mobile phone associated with the allegations of text messages dated 25 July 2015 and video dated 9 March 2013. This causes severe stress and substantial damage to plaintiff.
6. In November 2019, in the absence of plaintiff, defendant broke locks of plaintiff's house in [Suburb A] [sic] and entered in her home and stole her personal items and take the possession of plaintiff's home. This causes severe stress and substantial damage to plaintiff.
The plaintiff made the following further submission in support the application on the Motion:
After taking [sic] decision to end his relationship with his partner, taking children from their schools, without the consent of primary carer; with an aim to get children's custody, at the time of divorce, is manipulation of law. Practically, it is a case of kidnapping. On August, 2015, I was the primary carer of my children and I have equal rights on my children. Defendant did not have any valid reason to take away my children and keep me separate from my children. I knew nothing about my children. I tried to contact defendant several times, he did not receive my call and he did not inform me about my children. My son was only 3 years old, and my daughter was sonly [sic] 9. My son did not sleep a single night without me. We were always together. My children are my world. My children's birthdays are my Christmas and easter. They are my source of happiness. Thy are my reason to survive. They are everything for me. I was ended in Mental health ward.
Producing fake evidence against a primary carer mother to get children's custody, at the time of divorce, (again) is manipulation of law.
Making fake complaint to Police against your ex-partner, to settle down your personal issues, is a crime (according to Australian law).
Refusal to assist court in finding truth; and providing misleading information, is a crime (according to Australian law).
Taking illegal possession of somebody's home is a heinous crime in any law.
I informed Federal Circuit Court, Newcastle and to NSW Police about all these issues. Federal Circuit Court, Newcastle; Full Court, Sydney; High Court, Sydney; NSW Police refused to take necessary action. On 20 May 2020, I received final judgment from Full Court, Sydney. I was quite hopeful to get justice from Full Court. Unfortunately, again I could not get a right judgement in my appeals too. In June 2020, I filed private prosecution application in Local Court, but in the absence of permission from Attorney-General/Federal Circuit Court of Australia/Supreme Court, NSW, my application was dismissed.
Why should I face this torture and give explanations while I never send those text messages and never hurt my children? Why should I face financial crisis? Why I be on road without a home? I am in need to clear these issues. I am afraid that defendant may produce more fake evidences against me.
Currently, there is an AVO application in Belmont Court, NSW. This application is listed for final hearing in April 2021 (30 April 2021).
I request to the honorable court to give me permission to file an affidavit, affirmed on 5 March 2021 to provide few documents to court. (Please find a copy with this document (without annexures)) (1). I will send a copy of above-mentioned affidavit (with annexures) to court as well as to other party.
I am also attaching a copy of Federal Circuit Court orders dated 9 December 2015 (2) and one receipt from defendant's lawyers (3).
All above-mentioned issues are related to my damages claimed before and this court already have all relevant documents for these issues. If this court will consider all these issues in this case, it will be helpful for court to understand the situation; avoid more court cases and will save court's time and resources.
In oral submissions, the plaintiff contended:
1. She was denied the opportunity to forensically examine the defendant's mobile phone in family law proceedings to demonstrate that he had given "fake evidence". She denied sending the text messages, to the defendant.
2. She had unsuccessfully brought various appeals in the Family Court and High Court and made complaints about Judge Terry of the Federal Circuit Court.
3. The Court should "put a suspension order for the use of Judge Terry's orders dated 11 May 2018 and of August 2019 because [the defendant] managed these orders by fraud".
4. It was further submitted "I request this Court… give me children recovery orders because… it is really a legal kidnapping".
Submissions were also advanced about particular aspects of the final pleading such as the defendant breaking the locks of the plaintiff's home and entering the premises.
[3]
CONSIDERATION
Section 64 of the Civil Procedure Act 2005 (NSW) applies to the application to bring the further amended statement of claim. Section 64 is in the following terms:
64 Amendment of documents generally
(1) At any stage of proceedings, the court may order -
(a) that any document in the proceedings be amended, or
(b) that leave be granted to a party to amend any document in the proceedings.
(2) Subject to section 58, all necessary amendments are to be made for the purpose of determining the real questions raised by or otherwise depending on the proceedings, correcting any defect or error in the proceedings and avoiding multiplicity of proceedings.
(3) An order under this section may be made even if the amendment would have the effect of adding or substituting a cause of action that has arisen after the commencement of the proceedings but, in that case, the date of commencement of the proceedings, in relation to that cause of action, is, subject to section 65, taken to be the date on which the amendment is made.
(4) If there has been a mistake in the name of a party, this section applies to the person intended to be made a party as if he or she were a party.
(5) This section does not apply to the amendment of a judgment, order or certificate.
Section 58 of the Civil Procedure Act is also relevant and provides:
58 Court to follow dictates of justice
(1) In deciding -
(a) whether to make any order or direction for the management of proceedings, including -
(i) any order for the amendment of a document, and
(ii) any order granting an adjournment or stay of proceedings, and
(iii) any other order of a procedural nature, and
(iv) any direction under Division 2, and
(b) the terms in which any such order or direction is to be made, the court must seek to act in accordance with the dictates of justice.
(2) For the purpose of determining what are the dictates of justice in a particular case, the court -
(a) must have regard to the provisions of sections 56 and 57, and
(b) may have regard to the following matters to the extent to which it considers them relevant -
(i) the degree of difficulty or complexity to which the issues in the proceedings give rise,
(ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities,
(iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties,
(iv) the degree to which the respective parties have fulfilled their duties under section 56 (3),
(v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings,
(vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction,
(vii) such other matters as the court considers relevant in the circumstances of the case.
Further, s 56(1) and (2) of the Civil Procedure Act are relevant and are extracted below:
56 Overriding purpose
(1) The overriding purpose of this Act and of rules of court, in their application to civil proceedings, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
(2) The court must seek to give effect to the overriding purpose when it exercises any power given to it by this Act or by rules of court and when it interprets any provision of this Act or of any such rule.
Overall, the principal consideration in the determination of the Motion is whether interests of justice were better served by allowing or rejecting the application. It may be accepted that leave may be given, even at a late stage of proceedings, subject to the consideration of the circumstances in which leave is sought. Regard may also be given to whether the amendment is for a proper purpose. It is also appropriate to have regard to the overriding purpose the Civil Proceeding Act found in s 56.
The grant of the further amendment in this matter will undoubtedly cause further delay in the proceedings in a context where the plaintiff has provided no explanation as to why the various historical matters to which she referred were not advanced or adequately pursued in the trial. In other words, the delay has not been explained. This is not a matter where there is a paucity of material adduced by the plaintiff. Her evidence (whether provisionally admitted or otherwise) was voluminous. Submissions have been completed in proceedings. Those have been lengthy.
Many of the topics raised by the further pleadings coincide or relate to evidence as to family law proceedings or earlier controversies in the primary proceedings. In the circumstances I have described above evidence of that character has been admitted provisionally relevant over objection. As mentioned, there remains a significant issue as to the relevance of that material.
However, as forcefully put by counsel for the defendant in reply to the plaintiff's submissions on the Motion, it is quite evident from the plaintiff's submissions that the pleadings in the proposed further amended statement of claim (and the further evidence sought to be adduced) was essentially directed to the making of complaints about processes or outcomes of family law proceedings or matters thereto or challenging or disputing judgments orders made in the Federal Circuit Court and the Family Court regarding custody and property issues. In fact, the plaintiff now actively seeks the variation of some of those orders. It is reasonably clear from the further proposed pleadings, and submissions in support thereof (and the further evidence sought to be led in the primary proceedings), that the abiding purpose of the application for leave to further amend (and the calling of further evidence) was to traverse rulings in family law proceedings or to prosecute issues related to those proceedings including the custody of the children and, to a lesser extent, related property issues. That is not a proper purpose for these proceedings.
I also agree with the defendant's submissions that the plaintiff's further pleadings primarily do not disclose a cause of action. The final pleading concerning breaking into the family home may potentially disclose a cause of action, but I am mindful of the evidence already led in these proceedings that the Federal Circuit Court authorised the defendant to take possession of the property. Again, the issues essentially concern a challenge to earlier judgments and orders of courts in relation to family law issues.
In all the circumstances, the interests of justice favour disallowing the proposed further amendment to the amended statement of claim and the further evidence sought to be led by the plaintiff in that context. Whilst I do not consider the question of whether leave should be given to reopen the proceeding strictly arises, if that were an applicable question I would refuse the leave being given to the plaintiff to reopen her case for the above reasons.
The Court makes the following orders:
1. The amended notice motion filed 5 February 2021 is dismissed.
2. The plaintiff pay the defendant's costs of the motion as agreed or in default as assessed.
[4]
Amendments
03 February 2022 - Family Court orders protect the identities of the parties; pseudonyms applied to names and other identifying features.
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Decision last updated: 03 February 2022