Zheng v Jin

Primary judgment

1. His Honour gave ex tempore reasons for the summary dismissal of the proceedings.
2. His Honour's primary conclusion was that Mr Zheng was prevented by an issue estoppel from seeking to assert his entitlement to the funds sought on the present proceedings (referring to the sums of $50,000 and RMB $250,000) because he would be traversing one of the matters already decided by Altobelli FM in favour of Ms Jin ([36]). His Honour noted that the proceedings before Altobelli FM concerned the respective parties' entitlement to property, including the cash now in dispute; and said that Altobelli FM had reached conclusions about the property (including the cash) that he took into account in concluding that it was just and equitable for Mr Zheng's application under s 79 of the Family Law Act to be dismissed.
3. His Honour went on to say that, even if he were wrong in that primary conclusion, Mr Zheng's claim was one that could and should have been brought at the same time as the original s 79 application before Altobelli FM in any event ([37]). His Honour considered that if, contrary to his primary conclusion, the present question (i.e., as to the entitlement to the funds the subject of the 2024 proceedings) had not been determined by Altobelli FM, it was entirely unreasonable of Mr Zheng not to raise his present claims at the same time as all of the other issues that were resolved at the time ([38]), such that an Anshun estoppel arose (see Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589; [1981] HCA 45).
4. His Honour referred to the s 79A Family Court litigation and the 2018 litigation in the Supreme Court as matters which, together with two additional matters, would lead him to the further alternative conclusion that the proceedings should otherwise be dismissed under r 13.4 of the UCPR even if he were wrong as to the existence of an issue estoppel or Anshun estoppel (see [39]-[42]).
5. The two additional matters to which his Honour referred were: first, that the claims now sought to be brought by Mr Zheng appeared to his Honour to be obviously statute barred; the second, that the proceedings were frivolous and vexatious within the meaning of r 13.4 of the UCPR (the dispute being old and stale; the dispute, when measured against the emotional and financial cost of bringing it, was for a relatively minor amount of money; and that there was inordinate and unexplained delay in bringing the claims) (see [43]-[46] as to the first; [47] as to the second).
6. Thus, his Honour concluded that the attempted re-litigation of the matter constituted an abuse of the Court's processes and was frivolous and vexatious in the relevant sense ([48]). That being the case, there was no need for his Honour to consider the alternative claim that the pleading be struck out under r 14.28.

Proposed grounds of appeal

1. Mr Zheng, who has continued to appear for himself, without the benefit of legal representation, seeks leave to appeal on the following grounds: Part 1 Issue Estoppel and Doctrine of Merger Ground 1 his honour had breached rule of issue estoppel Ground 2 err in creating non-existed issue estoppel by mis-identifying what was the correct real actual basis for reason of dismissal Ground 3A the fake basis of speculations on Respondent's financial contributions had been destroyed by the evidences Ground 3B the fake basis of speculations on equal distribution of assets had breached the Doctrine of Merger Ground 4 impossibility of keeping mutual exclusive positions at the same time Part 2 UCPR 13.4 Abuse of Process Ground 5 his honour had breached the rule of issue estoppel by disregarding UCPR13.4 had already been decided by Ward CJ in Eq (then) Ground 6 his honour err both at facts and at law in misapplying Anshun Estoppel Ground 7 clean hand is prerequisite to the defence under UCPR13.4 Ground 8 It is not open to his honour to consider UCPR13.4 Part 3 Limitation of Action Ground 9 Litigations had stopped the running of time [sic].
2. As to the above grounds, Mr Zheng filed an Outline of Arguments dated 7 August 2024 and a Further Submission dated 14 October 2024; and handed up at hearing an Outline of Oral Arguments. Ms Jin did not comply with a direction made by the Registrar for the filing and service of submissions in reply by 28 October 2024. We declined to receive any written submissions from Ms Jin at the hearing of the leave application.
3. In his Outline of Oral Arguments, Mr Zheng grouped the grounds of appeal into three "consolidated" grounds. We address each in turn.

Material factual findings by his honour were not in evidence (not supported by the evidences) or even against the significant evidences, major conclusions were made by speculative inferences divorced from the reality of the case

1. Under this heading, Mr Zheng made submissions as to the finding by the primary judge as to an issue estoppel.
2. Mr Zheng was adamant that the "real basis" for the dismissal by Altobelli FM of Mr Zheng's s 79 application was the view that had there been formed by the Magistrate as to the lack of credibility of both parties (which made him unable to make a precise assessment of contribution - reasons at [62]).
3. Mr Zheng relied upon the Full Court's reasons when dismissing his appeal from that decision, in which the Full Court said that his Honour had reasoned that he could not make an order altering property interests because neither party had told him what had "really happened in a financial sense" both during and after their relationship; but that he could make an order dismissing Mr Zheng's application because Ms Jin's evidence was more reliable than that of Mr Zheng and those parts of her evidence that he believed were sufficient to establish that the dismissal of the application brought about a just and equitable outcome (reasons at [3]).
4. Mr Zheng's argument was that the primary judge was bound by an issue estoppel in relation to those judgments, i.e., bound by the conclusion that the real basis of the Magistrate's dismissal of his s 79 application was the impossibility of reaching a conclusion because "both parties were liars on material facts necessary for judging". Hence, as we understand his argument, Mr Zheng maintains that an issue estoppel could not arise as to the entitlements to the funds in question because there had been no determination as to those entitlements.
5. On that basis, Mr Zheng was insistent that the primary judge had used "the fake basis of factual speculations" to create an issue estoppel to dismiss his current case, submitting that his Honour's decision on this issue was "illogical, arbitrary and whimsical".
6. Ms Castle, counsel for Ms Jin, accepted that the operation of the doctrine of issue estoppel was more difficult in circumstances where the Family Court proceedings were not conducted on the basis of pleadings but nevertheless pointed to the fact that in the Family Court proceedings Mr Zheng had asserted that both the $50,000 and RMB $250,000 were part of the matrimonial pool of assets. We accept that the question as to whether there is an issue estoppel is ordinarily to be determined on the pleadings with reference to the judgment (see Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 at 507-509; [1988] HCA 21). However, where the matter has proceeded without pleadings one must consider the earlier judgment to ascertain the identicality or otherwise of the issues.
7. While it was accepted by Ms Castle that Altobelli FM did not identify property as belonging to either the wife or the husband, Ms Castle submitted that the conclusion there reached rested on the proposition that those amounts formed part of the matrimonial pool of assets.
8. We note that the primary judge, in reaching the conclusion that an issue estoppel had arisen, correctly identified the test applicable in relation to issue estoppel by reference to Blair & Perpetual Trustee Co Ltd v Curran (Adam's will) (1939) 62 CLR 464; [1939] HCA 23 (Blair). His Honour noted that the proceedings concerned the parties' respective entitlements to property, including the cash now in dispute; and accepted that his Honour had reached conclusions about the property that he took into account in concluding that it was just and equitable that Mr Zheng's application be dismissed. In Blair, Dixon J, as his Honour then was, said at 531-532 that the estoppel covers only those matters which the prior judgment "necessarily established as the legal foundation or a justification of its conclusion".
9. In substance, his Honour determined the issue as to whether Ms Jin was entitled to retain possession of the amounts claimed (albeit by reference to what was just and equitable between the parties rather than by reference to a determination as to the respective parties' contribution of those amounts to the matrimonial pool of assets).
10. To permit a party to re-litigate issues that were fundamental matters to an earlier judicial determination is not in the interests of the administration of justice and risks inconsistency of findings (see Murphy v Abi-Saab (1995) 37 NSWLR 280 at 287-288 (per Gleeson CJ)).
11. That said, what is required for an issue estoppel is that the issue to be determined (as distinct from the cause of action in which it arose) must be identical in the two proceedings (see Kuligowski v Metrobus (2004) 220 CLR 363 at 379; [2004] HCA 34, where the High Court endorsed the statement by Barwick CJ in Ramsay v Pigram (1968) 118 CLR 271 at 276; [1968] HCA 34).
12. Thus we accept that there may be an available argument on appeal that there was not an identity of issues as between the issue whether it was just and equitable for Ms Jin to retain that portion of what was treated as part of the matrimonial pool of assets, on the one hand, and the issue whether (as now alleged) Ms Jin had misappropriated or converted those assets. However, it is clear that the dismissal of the s 79 application (which was not disturbed on appeal) was predicated on the disputed sums forming part of the matrimonial pool (and not being trust moneys that had been wrongly converted or misappropriated to Ms Jin's use). Thus, the foundation for the decision in 2010 was an acceptance by Altobelli FM that the now disputed sums formed part of the matrimonial pool and hence what Mr Zheng now seeks to claim is counter to the basis on which his application in the first set of proceedings was determined against him.
13. As to the submission that the primary judge was "bounded" by an issue estoppel arising out of the Family Court judgments, this demonstrates a misconception as to the scope of issue estoppel - it does not bind a judge in the determination of claims before him or her; rather, if it applies, it precludes a party from raising an issue already determined against it. If Mr Zheng is here seeking to suggest that there was some precedential status to the reasoning of Altobelli FM that would bind the primary judge to follow that decision, he is wrong. The doctrine of comity plays a role in relation to decision of intermediate appellate courts but that too would not have any import on the issue that was before the primary judge, given that the reasoning of the Full Court in the 2012 and 2014 judgments is not inconsistent with the conclusion by the primary judge that an issue estoppel had arisen.
14. In determining whether leave to appeal should be granted, something more must be demonstrated than that the decision was arguably wrong. What is ordinarily required to be demonstrated is that the matter involves a question of principle or of public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable (see Clarke v State of New South Wales [2015] NSWCA 27; Carolan v AMF Bowling Pty Ltd t/as Bennetts Green Bowl [1995] NSWCA 69; Jaycar Pty Limited v Lombardo [2011] NSWCA 284; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164). Where a disproportionate amount of time and cost will be involved, that is a factor tending against the grant of leave to appeal, particularly having regard to the case management principles enshrined in the Civil Procedure Act. Another factor of relevance in the present case is the history of the litigation to date.
15. Having considered the arguments raised here, we consider that there are insufficient prospects of success on the proposed (consolidated) Ground 1 to warrant a grant of leave to appeal and strong discretionary considerations against such a grant (see below).

His honour had misread the applicable laws (error of law), his major conclusions were made through whimsical thinking

1. The thrust of this submission is the proposition (unsupported by authority) that there was no power in the Family Court proceedings for Altobelli FM to determine a common law cause of action (larceny or misappropriation) as the Family Law Act is federal law. As we understand the argument, Mr Zheng contends that on the basis that there was no jurisdiction for the Magistrate to hear the common law claims now raised it cannot have been unreasonable for him not to raise them at the time. The further argument is made that since Altobelli FM found it impossible to judge the case (i.e., the argument that the real basis for the dismissal was the lack of credibility of both parties), even had Mr Zheng sought to raise his present claims back then, "the case had been dismissed before such common law claim had a chance to be heard even if Magistrate had jurisdiction and power".
2. As to this aspect of Ground 2, the submission of Ms Castle was that s 119 of the Family Law Act permits a party to a marriage to sue in contract or in tort; and that the matters now sought to be raised by Mr Zheng (as to conversion and the like) would have been within the jurisdiction of the Court to determine in the Family Court proceedings had Mr Zheng raised them at that time.
3. We agree. A claim in contract or tort may be part of the same "matter" arising under the Family Law Act, and will not uncommonly be so if part of the matrimonial property is affected by such a claim. Moreover, Mr Zheng's suggestion that the case would have been dismissed before such claims could be heard cannot be accepted. Had he raised those claims at the time of the hearing before Altobelli FM, his Honour would have been required to determine them in discharge of his judicial functions. It may well be that he would not have been satisfied of either party's evidence on those claims as well as the evidence on the other matters which he was unable to assess, but that would simply mean that the claims would have fallen to be determined on onus.
4. We cannot see any arguable error in the primary judge's determination of an Anshun estoppel arising in these circumstances.
5. The second aspect of the now consolidated Ground 2 relates to the limitation point (the first of the additional matters to which the primary judge had regard and which his Honour considered supported the conclusion he had reached that the proceedings were an abuse of process).
6. Mr Zheng (in an argument that squarely undermines his arguments on estoppel) says that it is crucial to point out that the case before the Federal and State courts "are exactly the same case although under different causes of action".
7. Mr Zheng nevertheless suggests that the commencement of the first set of proceedings (the Family Court litigation) operated to suspend the "running time" of the litigation in the State court, such that the limitation period did not commence to run until the first set of proceedings in the Federal court (i.e., the Family Court litigation) was completed - which he says was in August 2013. Mr Zheng contends that his fraud claims do not become statute-barred until August 2025.
8. Mr Zheng relied for this proposition as to the suspension of the limitation period on 1876 authority from the Chancery Division in England (Manby v Manby (1876) 3 Ch D 101 (Manby)), a decision as to the effect of the issue of a writ in the Court of Common Pleas (which was never served) against an administrator for a debt not then barred by statute, in circumstances where an administration summons was later taken out in Equity by the creditor. The question was whether, when the summons was taken out, there was an existing debt which could be enforced by proceedings in equity (the administration summons being a sufficient continuance of the writ to prevent the operation of the statute of limitations) or whether the debt had become statute barred. Malins VC held that, although "in some sense" the issuing of the writ in the Court of Common Pleas "kept alive the debt", it only did so for the purpose of being recovered in that particular Court in which the writ was issued; and hence the administration suit was held to be barred by the statute. That authority is of no assistance whatsoever to Mr Zheng. It says nothing about whether the commencement of proceedings in the Federal jurisdiction operates to suspend the limitation period running for an action at common law.
9. Mr Zheng also relies on the cross-vesting laws which he submits prohibit the concurrent running of the same case in both Federal and State courts "under different cause of action simultaneously". What this submission fails to recognise is how the cross-vesting legislation operates in relation to the transfer of matters between Federal and State jurisdictions.
10. Mr Zheng next contends that his Honour misread the Civil Procedure Act because there is no provision there which requires commencement of proceedings earlier than the limitation period. (This misconceives the operation of the principle of Anshun estoppel.)
11. Mr Zheng also submits that his Honour erred in determining the limitation point because he says that both parties consented by conduct (i.e., waived the limitation issue). There is no substance to this contention. As was pointed out during the present hearing, the transcript of the hearing before the primary judge makes clear that the limitation issue was pressed by counsel then appearing for Ms Jin (see 13/05/23; T 11.32-34).
12. Finally, Mr Zheng argues that his Honour failed to recognise the consequences of his limitation arguments: that his "arbitrary determination" that the proceeding was statute-barred was contrary to what he says is the "well-established legal principle of INTERRUPTION on running time caused by litigations throughout both major common law countries including Australia and continental law countries" (which we understand to be his argument in reliance on Manby, which we have already considered above); his submission that because his litigation "never missed out on one limitation", each consecutive litigation fell within the limitation period and hence an extension of the limitation time should be granted (which we understand to be a submission that he would be able to obtain an extension of time to bring his present claims were that to be necessary); and his submission that the "limitation issue" was ruled out by Ward CJ in Eq after the hearing on 1 May 2018.
13. As to this last point, it is clear from the transcript of the proceedings before Ward CJ in Eq in mid-2018 that what was there addressed was an issue as to defective pleading, such that the then pleading was struck out with liberty to re-plead. There was no ruling on any substantive issue in the case, nor any ruling as to the limitation point now raised.
14. Ms Castle in her submissions on the limitation issue submitted that there was no authority for the proposition that the filing of proceedings in the Federal jurisdiction stopped time running on matters in the State jurisdiction. We agree (other than in limited circumstances such as in the case of representative proceedings and it is not necessary here to explore those). Ms Castle submits that, while there is caution about summarily dismissing matters on the basis of limitation issues, there is power to do so and there are circumstances in which it is appropriate to be done.
15. As to this aspect of the complaint sought to be raised by the consolidated Ground 2, we note that this issue was not treated by his Honour as dispositive on its own. His Honour expressly referred to it as an additional matter that supported his decision summarily to dismiss the proceedings even if he were wrong on the estoppel questions. As we do not consider that leave is warranted in relation to those aspects of his Honour's decision, we need not consider further the complaint as to his Honour's conclusion on the limitation issue.
16. The final aspects of the consolidated Ground 2 are under the heading "Additional reasons why leave should be granted". There follows a series of complaints that his Honour "intentionally disregarded" certain matters (that the outcome of the Family Court proceedings was a "gross injustice"; that Ms Jin did not have clean hands ("her hands were full of blood of criminal acts which was the root cause for rounds of litigations and appeals"); the merits of Mr Zheng's case were strong and "strongly evidence-based"; that the "grave nature of the case" related to larceny and misappropriation and conversion of trust money, such that refusing leave would make Ms Jin unjustly enriched by encouraging dishonest behaviour of stealing"). Mr Zheng also refers to other matters, including that Chinese Courts had the exclusive jurisdiction under the doctrine of immovables (a submission that appears to relate to a dispute as to alleged properties in China); that his Honour had disregarded a decision of the Magistrate (not identified) in 2008; the submission that all available evidence was in documentary form and Ms Jin would not suffer prejudice by the passage of time; and criticism of Ms Jin's affidavit evidence (as a cut and paste exercise) and finally the submission that Ms Jin "should not be afraid of seeing her true color under the weight of her own evidences of self-admissions: a penniless church rat of moral bankruptcy of adultery and stealing, disguised as philanthropist to the short marriage of 2 years".
17. As can be seen, much of the above seems to be an attempt to weigh into the merits of the underlying dispute that was determined by Altobelli FM and to do so in terms making serious allegations against Ms Jin and various judicial officers. No foundation was laid for any of those submissions. We address in due course the factors as to the discretion to grant leave raised by the above.

Arbitrary judging the issue not in dispute and beyond the scope of relief sought, major conclusions were made through arbitrary determination

1. Mr Zheng here again raises the argument that there was a waiver of the issue as to the limitation period, submitting that the decision on this issue was "judicially invalid" because the parties had consented on the issue of limitation. This is not supported by a review of the transcript, as already noted.
2. Mr Zheng submits that this also applies to the issue of Anshun estoppel, accusing the primary judge of arbitrarily judging this issue "through his whimsical thinking on Family Law Act disregarding that the Magistrate had no jurisdiction no power to determine common law cause of action of larceny and misappropriation on trust money". We have already rejected that contention.

Conclusion

1. There is no basis for the emotive assertion by Mr Zheng that the disposition of this case was capricious and arbitrary or that the fundamental rules of valid decision-making process had been violated; nor that the judgment is a "collection of speculations" and "whimsical thinking".
2. The primary judge gave a careful and reasoned decision for his summary dismissal of the proceedings. His Honour's primary conclusion was that an issue estoppel had arisen but he made clear that, if that be incorrect, then an Anshun estoppel would apply.
3. We have referred above to the consideration of the limitation issue. The second of the additional matters that his Honour raised (at [47]) was the conclusion that the proceedings were frivolous and vexatious. Counsel for Ms Jin has pointed to the numerous occasions on which Mr Zheng has agitated or sought to agitate what he concedes in his pleading (and in submissions) to be the same case that he has sought to run in all the past litigation (albeit now under a different cause of action). There is an obvious unreasonableness of Mr Zheng again vexing Ms Jin by proceedings in which the same claims are sought to be made (simply argued on a different basis).
4. As to the "additional matters" that Mr Zheng has raised, we simply note that the suggestion that there would be no prejudice to Ms Jin if leave were granted because the claims are made on documentary evidence and this would be unaffected by the passage of time wholly ignores the ongoing cost, inconvenience and no doubt stress caused by the continuation of proceedings relating to the same dispute that has been raised in different forms since 2007. As to the suggestion that Ms Jin has "unclean hands" (even apart from the lack of any evidentiary basis on which we could properly make such a determination), that is a defence to an equitable claim; it has nothing to do with whether leave should be granted to appeal from his Honour's summary dismissal of the proceedings.
5. In summary, we are not persuaded that Mr Zheng has demonstrated anything more than that there may be an arguable ground that the decision as to issue estoppel was wrong. The other grounds raised do not in our view even give rise to an arguable ground of appeal that would warrant the grant of leave. We consider that no issue of principle or public importance is raised; and we do not accept that any reasonably clear injustice, going beyond something that is reasonably arguable, has been shown.
6. The application for leave to appeal is dismissed with costs.

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