Plaintiff v Defendant

2 Mr Biscan and his sister, the defendant, took the Property under the Will of their father after he died on 24 November 2014. On 12 August 2015, Mr Biscan and the defendant were registered as tenants in common in respect of the Property.

3 On 12 July 2018, the plaintiff commenced a proceeding against Mr Biscan by way of Initiating Application (Family Law) issued in the Federal Circuit Court.[1] The application sought an apportionment of the 'property of the parties' as well as interim orders in respect of both the Property and another property at 222 Cumberland Road, Pascoe Vale.[2]

4 On 19 March 2019, by consent, the Federal Circuit Court made 'final property orders' between the parties (the 'Orders').[3] Later that year, the Federal Circuit Court made a divorce order between the parties.

6 On 10 June 2020, this Court granted administration of Mr Biscan's estate to the defendant.

7 On 9 December 2020, the plaintiff commenced the present proceedings against the defendant. It does not appear to be in dispute that the proceedings are enabled by s 29(1) of the Administration and Probate Act 1958 (Vic). Among other things, the plaintiff claims damages as a consequence of assaults, including sexual assaults.

8 In respect of various causes of action pleaded in tort, the plaintiff claims damages, including aggravated and exemplary damages, as a consequence of 'cumulative injury, including cumulative psychiatric or psychological injury' particularised as follows -

1 Pubic bone damage.

2 Interstitial cystitis (diagnosed in 2016, and which the plaintiff will have for life).

3 Pelvic inflammation.

4 During the period -

(a) the plaintiff contracted multiple sexually transmitted diseases from unprotected sex in the course of the sex work (past treatment for chlamydia, gonorrhoea, genital warts and genital herpes); and

(b) suffered ongoing skin injuries, including vaginal tears and lacerations,

resulting in continuing physical and sexual health issues for the plaintiff, affecting her quality of life.

5 Chronic uticaria.

6 Right hip instability.

7 Osteitis pubis and right adductor enthesopathy.

8 Patellofemoral chondral injury and patellofemoral instability.

9 Anorexia nervosa and adult bulimia exacerbated by the matters alleged in paragraphs 13 and 15 above.

10 Anxiety disorder.

11 Major depressive disorder.

12 Severe post-traumatic stress disorder by reason of the alleged significant sexual, physical, emotional and psychological abuse, with the disorder characterised or manifested by, among other things, the matters in [10] and [11] above, insomnia, flashbacks and regular nightmares on a nightly basis.[4]

9 The proceeding is defended. That said, the allegations of assault and the like are not admitted. In respect of those claims, however, the defendant relies upon the Orders, which provide, relevantly, as follows -

THE COURT ORDERS BY CONSENT ON A FINAL BASIS THAT:

1. In full and final settlement of all property matters between the Husband and Wife:

(a) The Husband will pay to the Wife $328,000 ("the Payment") within 90 days of the date of these Orders ("the Settlement Date");

(b) That contemporaneously with the Payment, the Wife shall do all such acts and things and sign all such documentation as may be necessary to transfer all of her right title and interest in the real property situate at 222 Cumberland Road, Pascoe Vale in the State of Victoria, being the whole of the land more particularly described in Certificate of Title Volume 06964 Folio 680 ("the Cumberland Road Property") to the Husband with the costs of the conveyance to be borne solely by the Husband;

(c) The Husband will retain his interest in the real property situate at 228 and 228A Sussex Street, Pascoe Vale in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume 19456 Folio 582 ("the Sussex Street Property") to the exclusion of the Wife; and

(d) Forthwith the Wife shall do all such acts and things necessary to discharge her caveat with registration number AR344579X secured over the Sussex Street Property at her sole cost and expense.

2. In the event the Husband fails to make the payment to the Wife by the Settlement Date, the Husband do all such acts and things to forthwith place the Cumberland Road Property on the market for sale and the proceeds be applied as follows:

(a) Firstly, to pay all reasonable costs and commissions of and incidental to the sale;

(b) Secondly, to discharge any encumbrance registered against the Cumberland Road Property;

(c) Thirdly, to the Wife the sum of $328,000 plus interest thereon from the Settlement Date of the payment at the rate prescribed by the Family Law Rules 2004;

(d) Fourthly, the balance of sale proceeds to be paid to the Husband.

3. Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

(a) Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party or in his or her name as at the date of these orders save for the myotherapy table and the piano that the husband is to be made available to the wife for collection by a removalist within 14 days of the date of these Orders;

(b) Each party foregoes any claim they may have to any superannuation benefits belonging to or owned by the other;

(c) Insurance policies remain the sole property of the owner named thereon;

(d) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;

(e) Each party foregoes any claim they may have to any inheritances to which the other party is entitled to either presently or in the future; and

(f) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

AND THE COURT NOTES THAT:

1. The parties intend that these Orders shall, as far as practicable, finally determine the financial and other relationship between them and avoid further proceedings between them.[5]

21 As to the whole of paragraphs 1 - 20 of the statement of claim, the Defendant says:

(a) on or about 12 March 2019, the Plaintiff, legally represented, consented to the Minute referred to in paragraph 8 above;

(b) on 19 March 2019, the Federal Circuit Court of Australia, having ordered that there be final property Orders in terms of the Minute:

(i) further ordered that the Plaintiff forgo any claim she may have to any inheritances to which the Deceased was entitled either then or in the future;

(ii) noted the parties' intention that the Orders shall, as far as practicable, "finally determine the financial and other relationship between them and avoid further proceedings between them";

(c) at 9 December 2020 when this proceeding was commenced, the estate of the Deceased was comprised solely of an inheritance to which he was entitled, namely his interest in the real property situate at 228 and 228A Sussex Street, Pascoe Vale in the State of Victoria;

(d) the Plaintiff's claims in this proceeding for damages against the estate of the Deceased constitute claims to an inheritance to which the Deceased was entitled, in breach of subparagraph 3(e) of the Orders of the Federal Circuit Court of Australia dated 19 March 2019;

(d)(a) further, or in the alternative, the present proceedings constitute "further proceedings" within the meaning of paragraph A of the Orders dated 19 March 2019, contrary to the stated intention of the parties at the time the Orders were made;

(e) the Plaintiff's claims in this proceeding for damages against the estate of the Deceased thus constitute an abuse of the process of this Honourable Court and the proceeding ought be stayed, alternatively dismissed either wholly or in part pursuant to Rule 23.01.[6]

Subject to any further order to the contrary, pursuant to Rule 47.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), the questions, issues or matters for determination of the Court by paragraphs 21(d) and (e) of the defendant's defence ('separate questions'), be tried and determined separately from and in advance of all other questions, issues or matters in the proceeding by judge alone.[7]

12 The questions to be tried, as identified in a further order made on 17 November 2021, (presently irrelevant portions omitted) are -

(a) Is the effect of the Order of the Federal Circuit Court of Australia dated 19 March 2019 such that the plaintiff's claims in the proceeding for damages against the estate of Thomas Biscan are 'in breach of paragraph 3(e)' of the Order as alleged in paragraph 21(d) of the defendant's amended defence dated 9 November 2021?

(b) If yes to question (a), does the plaintiff's proceeding constitute an abuse of the process of the Court as alleged in paragraph 21(e) of the Amended Defence?

(c) Upon a proper construction of the FCCA Order, does the plaintiff's proceeding constitute 'further proceedings' within the meaning of that expression in paragraph A on page 4 of the FCCA Order, and if yes, is the proceeding 'contrary' to that paragraph A, as alleged in paragraph 21(d)(a) of the Amended Defence?

(d) Further to both parts of question (c), does the plaintiff's proceeding constitute an abuse of the process of the Court as alleged in paragraph 21(e) of the Amended Defence?[8]

13 The parties agreed upon a joint memorandum that states various agreed facts together with assumed and other facts.[9] No witnesses were called.

14 I should note that the proceeding is otherwise fixed for trial to commence on 18 July 2022 on an estimate of eight days.

15 Both parties filed and served written outlines of submissions. Those submissions were given focus by respective counsel in the course of oral addresses.

16 Both counsel approached the separate questions as essentially to be determined by the proper construction of the Orders. No separate argument was directed to the topic of abuse of process.

17 Counsel for the plaintiff submitted, in substance, that -

(a) the onus rests on the defendant; alternatively, and in the nature of a 'fallback position', the issue is one of construction in which no issue of onus or burden arises;[10]

(b) contrary to the contention of the defendant, the plaintiff's claims are not a duplicate of claims earlier made in the Federal Circuit Court;

(c) properly construed, the Orders do not preclude the plaintiff's claim as -

(i) no claim is presently made upon either the Property or any inheritance of Mr Biscan;

(ii) the plaintiff's causes of action were preserved by paragraph 3(a) of the Orders; and

(iii) paragraph A is an 'other matter' and cannot supplant the operative orders.

18 In response, counsel for the defendant contended that -

(a) the plaintiff bears the onus of proof;[11]

(b) assistance may be derived from passages in Kennon v Spry;[12]

(c) the intent of the Orders was finally to determine the financial relationship between the plaintiff and Mr Biscan and therefore to extinguish 'choses in action against each other';[13]

(d) in that, 'the plain meaning of the orders ... is that there shall be no further proceedings by this plaintiff against her late husband or the executor';[14]

(e) this Court is entitled to take judicial notice of the fact that 'all relevant matters' were before the Federal Circuit Court; and

(f) paragraph A confirms the intention of the parties.

19 The meaning of the Orders should be derived from the language used, read fairly. It is an objective exercise undertaken without delving into the subjective thoughts of the judge who made the order. Recourse may be had to extrinsic material including any reasons for judgment.[15]

20 In broad terms, I accept the arguments - and construction of the Orders - advanced by the plaintiff, and reject the contentions of the defendant.

21 As revealed by the manner in which argument unfolded, nothing turned on the question of onus. The issue is one of construction and is either correct or not regardless of which party takes the running.

22 As I have noted, the Orders arose from a proceeding by way of Initiating application (Family Law) commenced in the Federal Circuit Court. In nature, that was a proceeding 'between the parties to the marriage with respect to the property of the parties to the marriage or either of them'.[16]

23 Neither party took me to any authorities in which the Family Court or Federal Circuit Court have considered that expression to contemplate causes of action arising between parties to the marriage. Causes of action arising between parties to a marriage are not the first thing that one might think of in connection with property settlement proceedings brought under the Family Law Act 1975 (Cth). That said, the issue may well arise in practice and the statutory language is probably wide enough to accommodate rights of that kind.[17]

24 Counsel for the defendant invited me, as a matter of 'common sense' and 'judicial notice', to take account of the asserted fact that allegations of assault of the kind presently relied upon by the plaintiff 'must have been' before the Federal Circuit Court.[18] Allegations of that kind do not appear in the Initiating application (Family Law) to which I have referred. Even if I could take account of such matters in the manner invited, for reasons that will become apparent below I do not regard that as a consideration that assists the defendant.

25 Counsel for the defendant emphasised two passages in Kennon v Spry,[19] in which Gummow and Hayne JJ referred to the statutory instruction to, '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'.[20]

26 The passages to which I have referred do no more than refer to the statutory instruction in s 81 of the Family Law Act. In that sense, the passages do not themselves affect the present approach to construction. The statutory instruction is, of course, relevant context, but a context that can go only so far. In the end, the extent of finality ordered by the Federal Circuit Court depends upon the terms of the orders made.

27 In this context, on their face, the Orders - relevantly extracted above at [9][21] - are directed to dividing or altering interests in respect of the 'property' of the parties.

28 Paragraph A of the Orders is expressly no more than a note. It expresses the intention of the orders made, but is not operative independently of or in substitution for those orders. The finality spoken of in paragraph A is a finality marked out by the operative orders that precede it.

29 There are three operative orders. Order 1 is, in terms, directed to the 'full and final settlement of all property matters' between the 'Husband and Wife'. However, that order concerns interests in and relating to real property, which one would think would be central in many if not most divisions of matrimonial property. By that order, the 'Husband' was to pay the 'Wife' $328,000.

30 Orders 2 and 3 are related to order 1. The plaintiff describes them as concerned with default. Order 2 concerns any failure by the 'Husband' to make payment. Order 3 takes effect subject to any need to enforce the monies due.

31 Order 3 is mostly directed to several identified categories of property. It is unsurprising that the Orders would seek to make clear that certain identified categories of property are otherwise unaffected by the division of real property effected by order 1.

32 Order 3(a) is the broadest such category and specifies that 'all other property (including choses in action)' shall remain in the name of the particular party, save for the 'myotherapy table and the piano'. In the present context, the effect of those words seems clear: ownership of all other property in the name of each party at the date of the orders, including choses in action, is unaffected except for the myotherapy table and piano.

33 As I have noted, the defendant submitted that, as between the 'Husband' and 'Wife', the Orders extinguished 'choses in action against each other'. I cannot accept that submission. The finality effected by the Orders must take effect by reference to its terms. By those terms, relevantly, all other property including choses of action remained vested in their owner whether they were exercisable against a party to the marriage or some other person.

34 In this context, if it be the case, as was submitted by the defendant, that the claims now relied upon by the plaintiff against the estate of her former husband were either before the Federal Circuit Court or within the contemplation of the parties at the time at which the Orders were made, it is surprising - to say the least - that the Orders make no specific provision in respect of them. I cannot accept that such claims must be taken to have been extinguished by reference to broad expressions of 'finality',[22] especially when the rights concerned fall within a class or category of property that is specifically identified by the Orders as standing unaffected.

35 The other order relied upon by the defendant - particularly in written argument - was order 3(e). That order is directed to present or future entitlements to inheritances.

36 In this connection, the allegation in paragraph 21(c) of the amended defence was assumed for the purposes of the present hearing, namely -

at 9 December 2020 when this proceeding was commenced, the estate of the Deceased was comprised solely of an inheritance to which he was entitled, namely his interest in the real property situate at 228 and 228A Sussex Street, Pascoe Vale in the State of Victoria.[23]

37 That assumed fact must be read - or reconciled - with two agreed facts to which I have earlier referred, namely that the deceased and defendant were devisees of the Property under a will and, on 12 August 2015, were registered as tenants in common.

38 In this context, it is evident that the Property was inherited by the deceased and the defendant, but since 12 August 2015 they have been registered as tenants in common.

Each party foregoes any claim they may have to any inheritances to which the other party is entitled to either presently or in the future.

40 In my view, that order was not directed to the interest of the deceased in the Property - which interest was dealt with specifically under Order 1.

41 Further, the deceased's interest in the Property was, at that time, neither a present nor future entitlement to an inheritance, as he had already inherited it and had been registered as a tenant in common some years earlier.

42 In addition, and perhaps most importantly, the plaintiff's present claim is not a claim upon any present or future entitlement of the deceased or his estate to an inheritance. Nor is it a claim on the Property. It is - in essence - a claim for damages arising from alleged tortious conduct. How those damages might come to be paid - if awarded - is immaterial.

43 For completeness, it will be evident that, in my view, the Federal Circuit Court proceeding and present proceeding are conceptually different. One was directed to a division of the property of the parties - particularly real property of a matrimonial kind - and the other is a claim for damages in respect of causes of action in tort.

44 Further, as I have already noted, the rights sought to be pursued by the plaintiff in the present proceeding were specifically preserved by order 3(a) made in the Federal Circuit Court proceeding.

45 For these reasons, defendant's various contentions to the effect that the present proceeding is a 'duplicating claim' concerning matters 'raised and addressed' in the Federal Circuit Court proceeding must be rejected.

(a) in substance, the defence pleaded in paragraph 21 of the amended defence must fail; and

(b) the four separate questions must be answered in favour of the plaintiff.

47 It follows that question (a) must be answered 'no', question (b) does not arise and questions (c) and (d) must also be answered 'no'.

48 I will hear from counsel concerning the form of orders and costs.

[2] In the course of the hearing, I was told that the property at 222 Cumberland Road, Pascoe Vale is the former matrimonial home (T9). On the pleadings, it is not in issue that the plaintiff was registered as a joint proprietor of that property on 2 March 2016.

[3] Exhibit B (CB50-53). See below at [9].

[4] Plaintiff's Statement of Claim, CB8.

[6] Defendant's Amended Defence, CB17-18.

[10] Phipson on Evidence, 19th ed, 2018, [6-09], Scott v Martin (1987) 1 WLR 841, 846D and R v Whattcott [2019] EWCA Crim 1889, [29].

[11] In the written outline, the defendant contended that the plaintiff both bore the onus and that she must establish 'the matters pleaded ... on the higher basis of the Briginshaw burden' (cf, Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361-363). In address, that element of the submission was softened, if not abandoned, as 'premature' or 'surplusage' (T27). In my view, that concession was quite properly and correctly made.

[12] [2008] HCA 56; (2008) 238 CLR 366 ('Kennon'), [97], [129].

[15] Laming v Jennings [2018] VSCA 335, [123].

[16] Family Law Act, s 79(1)(a).

[17] Kennon (n 12) [2008] HCA 56; (2008) 238 CLR 366, [54], [91].

[20] Family Law Act, s 81.

[22] Compare, in a different context: Grant v John Grant & Sons Pty Ltd [1954] HCA 23; (1954) 91 CLR 112, 123.