TRIFUNOVIC v TRIFUNOVIC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, MEAGHER and POWELL JJA 28 November 1997, 18 December 1997 [1997] NSWCA 323 Family Provision Act — De Facto Act — evidence contradictory — separate proceedings — different parties. FACTS The appellant appeals an order of Master McLaughlin striking out as an abuse of process of the Court an application by the her under the De Facto Relationships Act, 1984 in which she gave evidence inconsistent to that given in proceedings under the Family Provision Act before Bryson J. HELD The Master's discretion miscarries unless the details of the evidence at the time the oral evidence is given goes to the issues in the proceedings below or misled his Honour. In the absence of a general rule that if one has given inconsistent evidence in earlier proceedings against one defendant one is estopped against initiating proceedings against another defendant, there is no abuse of process. Mason P I have had the benefit of reading the judgments of Meagher JA and Powell JA. I agree with each. The appeal must be upheld. The Registrar should be directed to refer the papers to the Attorney General. The respondent sought to support the judgment of the learned Master by two alternative arguments. First it was contended that as a matter of public policy the Court could not countenance a party in one case mounting a claim that proceeded on a supposition entirely incompatible with that adopted in another. Secondly, it was said that the evidence before the Master revealed that the appellant was a witness of such poor credibility that it was possible to characterise the current claim as so untenable as to amount to a frivolous waste of the Court's time. I would reject the first argument. There may be cases where it would be an abuse of process for a party to advance in one case a claim rejected in another, even though the parties are different. (If they were the same, the principles of issue estoppel would produce the same result.) Thus, in Reichel v Magrath! Lord Halsbury LC said that it would be: "\.. a scandal to the administration of justice if the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceeding to set up the same case again.... it surely must be in the jurisdiction of the Court of Justice to prevent the defeated litigant raising the very same question which the Court has decided in a separate action." See also Hunter v Chief Constable of the West Midlands Police;2 R v Balfour; Ex parte Parkes Rural Distributions Pty Ltd.3 1. (1889) 14 App Cas 665 at 668. 2. [1992] AC 529. 3. (1987) 17 FCR 26. 2 UNREPORTED JUDGMENTS These and other cases were considered by Hunt CJ at CL in Haines v Australian Broadcasting Corporation.4 His Honour there pointed out that, to be an abuse of process, the issue determined in the earlier case which is sought to be litigated in the later case must be one which the party propounding it in the latter lost in the former. Here the appellant had relied upon her status as widow in propounding the earlier claim under the Family Provision Act. She failed because Bryson J was not satisfied that the provision made by her husband for her during his lifetime was inadequate for her proper maintenance and advancement in life. In those proceedings, counsel for the defendant put to her in cross-examination that she had abandoned her husband during his lifetime, having formed a relationship with the man who was the deceased in the present case. Whatever the credibility of her denials in that case, they cast a very strong shadow of suspicion upon her contradictory assertions in the present case. But the difficulty for the respondent is that it was not an essential part of the appellant's case in the earlier proceedings to establish that she was not in a de facto relationship with the respondent or indeed anyone else. She was an "eligible person" because she was the widow of the deceased. It was the defendant in the Family Provision Act proceedings who sought to diminish the strength of her claim as widow, and also attack her credit, by seeking to show that she was living as man and wife with the Mr Trifunovic. The appellant denied such suggestions explicitly and in detail. But nothing ultimately turned upon this, because her case failed on other grounds. I would also reject the second argument. Cases may arise where a plaintiff's claim is shown to be so lacking in credibility that it ought to be summarily dismissed. There is no absolute rule that summary judgment must be refused simply because the defendant offers evidence which, at first blush, suggests the existence of a triable issue. However, this was a case where the appellant had sworn facts which, if accepted, could have made out her pleaded assertion that she lived in a de facto relationship with the respondent between 1993 and 1996. There was some corroboration in that the respondent admitted that sexual intercourse had taken place between the parties at one point of time. It was also common ground that the couple had lived under the same roof between 1993 and 1996. In these circumstances there was a real question to be tried on the issue of whether there was cohabitation in a de facto relationship for the requisite period: De Facto Relationships Act, s17(1) (two years). The Master made no finding that he disbelieved the appellant. It is doubtful whether it would have been proper to have done so given that she was not required to attend for cross-examination on her affidavit. In addition there was nothing before the Master to indicate the materiality of the evidence given by the appellant in the 1995 proceedings as regards the outcome of those proceedings. The judgment of Bryson J was not in evidence. The Master seems to have taken the position that the appellant's apparent failure to provide a better explanation for what seemed to be a thin case was a matter justifying the drawing of an adverse inference at the stage of an application for summary judgment. In taking this approach the Master effectively reversed the onus of proof. It is for the plaintiff seeking summary judgment to demonstrate the absence of a triable case: see Fancourt v Mercantile Credits Ltd.5 4. Unreported, 21 July 1995. 5. (1983) 154 CLR 87 at 89. URJ TRIFUNOVIC v TRIFUNOVIC (Meagher JA) 3 Meagher JA This is an appeal from an order of Master McLaughlin striking out as an abuse of the process of the Court an application by the appellant, Milka Trifunovic, under the De Facto Relationship Act 1984. In her Statement of Claim she asserted that she lived continuously in a de facto relationship with the defendant/respondent, Robert Blazo Trifunovic, from at least July 1993 until April 1996. There is also an application to adduce fresh evidence. That motion was dismissed on the grounds that the evidence was not "fresh". The point of the learned Master's decision can be stated briefly. In the appellant's Statement of Claim, she asserts unequivocally that she and the defendant lived together, as husband and wife, from July 1993 to April 1996 in his Wamberal house. The defendant denies that the relationship existed after July 1993, although conceding that they both lived in the same house before and after that date and also conceding that they had sexual intercourse with each other at that house before that date. Milka, if I may thus call her, was born in Sofia, Bulgaria. She was first married in Yugoslavia in 1967 to a gentleman whose surname was Trazkouski. The marriage ended in a decree of divorce in 1979. Coming to Australia on 5 April 1990 she seems to have married a Mr Burgazoff. The marriage lasted but a short time, Mr Burgazoff dying on 15 May 1992. His death sparked off two pieces of litigation: (a) an application by his estate under the Family Law Act s79 to claw back certain assets standing in her name but largely acquired with his moneys (viz a home unit in Potts Point, Sydney and a house in Sofia, Bulgaria), and (b) an application by her under s7 of the Family Provision Act for yet further provision. Both pieces of litigation were heard by Bryson J. Each failed. During the course of oral evidence in the two pieces of litigation to which I have referred, Milka said as follows: "Q. Do you presently live in a relationship with a man? A. No, I am not. Q. Do you live with a Mr Trinovic[sic?]? A. No I don't. Q. Do you have a friendship with him only? A. I have plenty, we go to the same church." It was this evidence which caused the learned Master to take the course he did. One can hardly warm to a litigant swearing different versions of the facts in different pieces of litigation. And there can, of course, be no doubt that the versions are different. To say that she had no relationship with a man in one case can hardly be reconciled with a statement in another case that she is living with a man at that very time. Moreover one or both statements must be mendacious. The Master obviously did not enjoy his Court being turned into a factory for lies. I hope these papers are sent to the Attorney-General to see what (if any) steps he wishes to take to prosecute Milka for perjury or false swearing. Nevertheless, in my view the Master's discretion miscarried unless the details of the lady's evidence at the time she gave the oral evidence complained of either went to the issues in the proceedings before Bryson J or else misled his Honour in some material way. It did neither. She had the status to bring the proceedings; she was a widow, if an undeserving one. Moreover, she did not mislead his Honour. His Honour disbelieved nearly every word she said, on every point. Bryson J said: 4 UNREPORTED JUDGMENTS "T do not confidently feel that I have been told where she lives, with whom or in what circumstances. Her evidence on this matter has left me with a feeling that very little information has truly been given, that there is little on which I could rely." Unless, therefore, there is some general rule that one cannot initiate legal proceedings against a defendant if one has given inconsistent evidence in earlier legal proceedings against a different defendant, there can be no question of an abuse of the process of the court. In my opinion, no such general rule exists. I am of the opinion that the following orders should be made: 1. Appeal allowed 2. Order of 28 February 1997 be set aside 3. The appellant's costs before the Master abide the further order of the Master. 4. The appellant's costs before the Court of Appeal be paid by the respondent, who is to have a certificate under the Suitors' Fund Act in respect thereof. Powell JA The basic facts which have given rise to this appeal are set out in the Judgment which has been prepared by Meagher JA, which Judgment I have read in draft. To say the least, the situation with which the Court is faces is a distasteful one, for not only is it difficult indeed to avoid the conclusion that so much of the evidence which was given by the Appellant on the hearing before Bryson J as is relevant to the present case was deliberately false, but it is not beyond the bounds of possibility that the claim which the Appellant seeks to advance in the present proceedings is a false one. So far as the first matter is concerned, I would add to the evidence referred to on p3 of Meagher JA's Judgment the further passages in the oral evidence given by the Appellant, during the hearing before Bryson J. In order that the significance of that evidence be more readily understood, I record, first, that the property at Benwerrin Road, Wamberal was the former matrimonial home of the Appellant and the late Mr Burgazoff; second, that Messrs Spassof and Cole were, respectively, the executor of the late Mr Burgazoff's will and his (Mr Spassof's) solicitor, third, that the home in which the Appellant claims to have lived with the Respondent in a de facto relationship is the Respondent's home unit, 1/13 Prince Street, Wamberal; and, finally, that the property at 22 West Street, Blacktown is a property which at the time of the hearing before Bryson J, was owned by the Respondent. The further passages to which I have referred are (AB 42-48): "HIS HONOUR: . Do you still live at Benwerrin Road Wamberal? Yes. . Is that the house that Mr Burgazoff owned when he was alive? Yes, that's correct. How long have you lived there? I have been there since 1986 and I am still there. But you left him and he still lived there after you left him, didn't you? Yes. Well, there was a time when you lived away from there? Right, that's correct. How long have you lived there now? Now, three or four days in the week POPOPO>OPO>O URJ TRIFUNOVIC v TRIFUNOVIC (Powell JA) 5 Q. Say that again, three or four days in the week? A. Yes, because most of the time I have to come and see the solicitors and doctors. Everything is here in Sydney. Q. There was some period when you were in South America, was there? A. Yes, that's correct. Q. When was that? A. In 1992. Q. You came back to Wamberal in 1993, did you? A. Yes. Q. When was that? A. Some time at the end of '93. Q. Sometime at the end of '93? A. I can't remember the month. Q. What were the circumstances in which you returned to the house at Wamberal, did someone let you in. I think you didn't own it, did you? A. No, I didn't own it. Q. What were the circumstances in which you returned there? A. Because my belongings were there, my clothes are there and I asked permission, I asked my solicitor at the time, and he said you can move in. Q. Who was that? A. Mr Gunson. Q. Did you ask Mr Spassof whether you could move in? A. Yes, we discussed with Mr Spassof he said to me, 'I don't mind if you move, in because somebody will look after the house, so we won't have anybody breaking in'. He said, 'We can insure the house if somebody is living in it.' Q. Did you make any arrangements to pay rent or anything for occupying the house? A. We never discuss about that. Only they told me that I have to keep up with cutting the grass. Mr J J Cole refused to pay for the cutting of the grass. He told me, because I am living in that house I should take care of the house myself . I don't think anyone would doubt that; you don't dispute that, do you? . No, I don't. . Is there anywhere else you live apart from the house in Wamberal? . No, Sir. . When you come to Sydney where do you live? . I go to some friends who offer me accommodation, I stay with them. . You have the property at Potts Point in your name? . Yes, correct. . Do you have any other property now? . No, not here in Australia. Q. You can't tell me the time you went into the property at Wamberal in 1993, you can't tell me what date that was, can you? A. I think 27 July I arrive and stay one, two weeks with Mr Spassof; and then I moved to Wamberal. Q. Where was that when you stayed with Mr Spassof? A. At the beginning of August. Q. Where was that? A. 360 Showground Road Gosford. Q. When you claim against your husband's estate what are you asking for? PAPA PL PO PO 6 UNREPORTED JUDGMENTS A. Your Honour, I am just asking to have a roof over my head, that's all. Q. I think you can probably tell me more clearly than that what you want out of your husband's estate, can you? A. Only if I have that house in Wamberal. McGRATH: Q. Do you know an address 22 West Street here in Sydney? . Yes, I know. . And do you live at that address from time to time? I visit that address, yes. Do you stay there overnight from time to time? Sometimes, yes. How often do you stay there overnight? Once or twice in the week or in the month. What's the full address at West Street? 22 West Street. What suburb? Blacktown. Is that Mr Trijkovski's home? Yes. POPOPO>OPOPO> HIS HONOUR: Q. Are there any times when you have stopped there overnight? A. Yes. Q. How often do you do that? A. Depends if I have got appointments early in the morning for the compensation. Usually for the compensation the insurance make early in the morning. If I take appointment early in the morning, because I don't have early bus in Wamberal, I decide to stay to meet the appointment. Q. Where do you go for these early morning doctor appointments? A. Where ever (sic) the insurance send me to have to go. Q. Tell me where? A. In Macquarie Street and Caringbah I have been to the doctors. I been to Parramatta doctors. Q. Anywhere else? A. No, mostly here in city. Q. Do you mean in Macquarie Street or is there anywhere else? A. Macquarie Street, sir. Q. How long have you stayed at West Street since you came back to Australia in 1993, tell me how long is the longest periods you have stayed there? A. The longest period is going to be two days. Q. What's the last time you stayed at West Street? A. Last night. Q. Yes and before then? A. And the night before. Q. Yes. A. On Sunday I came from Wamberal to be here on time for Monday for the hearing date. I didn't want to miss the hearing date, because I don't have legal representation. McGRATH: Q. When you went back to the Wamberal home after coming back from Venezuela did you break into the house? URJ TRIFUNOVIC v TRIFUNOVIC (Powell JA) 7 A. No. Q. Did you change the locks after you moved in? A. Yes, I did change. Q. Why was that? A. Only one key, only one door, I changed because it wasn't good to lock up and it wasn't a security door, so I have to change door. Q. Is the residential part of that house upstairs at Wamberal? A. Yes. Q. Do you live upstairs at Wamberal at the moment? A. Yes. Q. Does anyone else apart from you live in the Wamberal house? A. No one, sir. McGRATH: Q. Is it the true position you don't live at that premises at Wamberal? A. That's not true. Q. Is it the true position you and Mr Trijkovski go there from time to time to collect the mail and do the lawns? A. No, that's not true. The suggestion - which was advanced in the course of the Appellant's written submissions - that the answer given by the Appellant in the evidence referred to by Meagher JA was due to the Appellant's confusion and limited command of English is difficult to accept in the light, first, of the Appellant's ready identification of the Respondent with "Mr Trijkovski", and, second, of the Appellant's allegation in her Statement of Claim, that "in 1992 (she) was teaching (E)nglish in Venezuela". This evidence notwithstanding, the evidence which was tendered on the hearing before the Master included evidence - other than that of the Appellant - which tended to establish that the Appellant and the Respondent had, for some time at least, lived together in a de facto relationship. Included in that evidence was an unsigned Separation Agreement (AB 52-57) - tendered by the Respondent which was, in part, as follows: " SEPARATION AGREEMENT PURSUANT TO PtIV DE FACTO RELATIONSHIPS ACT (NSW) THIS AGREEMENT made the 13" day of October One thousand nine hundred and ninety five between ROBERT BLAZO TRIFUNOVIC 1/13 Prince Street, Wamberal in the State of New South Wales, (hereinafter called 'ROBERT?') of the first part and MILKA IVANOVA of 1/13 Prince Street, Wamberal in the said state, (hereinafter called 'MILKA ') OF THE OTHER PART WHEREAS B. ROBERT and MILKA commenced cohabiting in a relationship in September 1993 8 UNREPORTED JUDGMENTS H. The parties separated in July 1995 and wish to enter in to (sic) an agreement which they intend to be legally binding upon each of them as to their respective rights and obligations as between themselves arising during and out of their relationship. Such being the state of the evidence, there was raised an issue of fact which should have been allowed to go for trial. That being so, I agree with the Orders proposed by Meagher JA. T also agree with Meagher JA that the papers should be drawn to the attention of the Honourable the Attorney-General so that he might take whatever action he considers appropriate. 1. Appeal allowed 2. Order of 28 February 1997 be set aside 3. The appellant's costs before the Master abide the further order of the Master. 4. The appellant's costs before the Court of Appeal be paid by the respondent, who is to have a certificate under the Suitors' Fund Act in respect thereof. Counsel for the appellant: R D Wilson Solicitor for the appellant: Self Counsel for the respondent: W Haffenden Solicitors for the respondent: J J Cole & Co