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District Court 16 June 2023

Giunta v Giunta (Pseudonyms)

[2023] NSWDC 202

Domestic & family violence
CIVIL PROCEDURE

Citation: Giunta v Giunta (Pseudonyms) [2023] NSWDC 202
Court: District Court of New South Wales
Date: 16 June 2023
Judge: Judge Levy SC

Background

The parties are former spouses whose marriage ended by decree absolute in March 2021. Earlier family law proceedings in the Family Court concluded in May 2021 with a 165-page judgment (published as Giunta & Giunta (No. 3) [2021] FamCA 272) that resolved complex parenting and property disputes. In those proceedings, the Family Court made findings of family violence against the former husband and applied what is known as a Kennon adjustment: a percentage increase to the former wife's share of the property pool to reflect the additional burden placed on her contributions by that violence.

In December 2022, the former wife filed a statement of claim in the District Court seeking common law damages in tort, specifically for assault, battery, and conduct intended to cause emotional distress. The alleged conduct occurred during the marriage between 2010 and 2018, and some of the underlying facts had already been admitted by the former husband or expressly found by the Family Court.

The former husband brought an interlocutory application to strike out or permanently stay the District Court proceedings before they progressed further.

The court was asked to resolve the following questions:

  • Whether the former wife's tort claims were barred by res judicata (a final judgment on the same cause of action between the same parties) arising from the Family Court proceedings
  • Whether issue estoppel applied, given that the Family Court had already made findings on the family violence
  • Whether Anshun estoppel applied (the principle from Port of Melbourne Authority v Anshun (1981) that a party may be estopped from raising in later proceedings a claim or defence that could and should have been raised in earlier proceedings)
  • Whether the proceedings amounted to an abuse of process or imposed oppression on the former husband by relitigating matters already ventilated in the Family Court
  • Whether the claim was statute-barred at the time of filing

Decision

Judge Levy SC dismissed the application, rejecting each of the former husband's grounds.

On the question of issue estoppel, the Court found that the Family Court's Kennon adjustment and the former wife's current tort claims involve materially different species of compensation. The Kennon principle operates as an evaluative, percentage-based adjustment to the property pool in family law proceedings under s 79 of the Family Law Act 1975 (Cth). It does not constitute a determination of compensatory damages at common law. Because the tortious claims were not actually litigated or determined in the Family Court, no issue estoppel arose.

On Anshun estoppel, the Court found that the Family Court did not treat the property matters and the former husband's tortious conduct as a single justiciable controversy. The Family Court's accrued jurisdiction to award common law damages had not been invoked in those proceedings. That jurisdiction, the Court noted, is a distinct one that the former wife was not required to exercise simply because family law proceedings were on foot. The estoppel claims therefore could not be sustained.

On abuse of process and oppression, the Court found that although there was a partial factual overlap between the matters underpinning the Kennon adjustments and the torts pleaded in the District Court, that overlap did not generate unfairness to the former husband sufficient to warrant a stay or strike-out. Importantly, the Court noted that the former husband had been "vexed" on family violence issues in the Family Court through the operation of that court's statutory jurisdiction, not at the former wife's instigation for the purpose of obtaining compensatory damages. The statute of limitations argument was also rejected at this interlocutory stage. The Court declined to dismiss the claim on that basis without the matter being fully argued.

Orders Made

  • The former husband's notice of motion seeking to strike out or stay the proceedings, filed 17 March 2023, is dismissed.
  • The former husband is to pay the former wife's costs of the dismissed motion on the ordinary basis, with liberty to apply regarding any different costs order.
  • The Court will proceed to make appropriate case management orders.
  • Exhibit A may be returned to the parties.
  • Exhibit B (the unredacted Family Court judgment) is to be placed on the court file in a sealed envelope, not to be opened except by order of a Judge of the Court or a Judge of the Court of Appeal in the event of an appeal.
  • Liberty to apply on 7 days' notice if further or other orders are required.

Key Takeaways

  • A Kennon adjustment in family law property proceedings is a distinct form of relief from common law compensatory damages in tort. The District Court confirmed that the two are separate and severable, and that the making of a Kennon adjustment does not preclude a subsequent tort claim based on overlapping facts.

  • Anshun estoppel did not apply merely because the Family Court possessed accrued jurisdiction to award common law damages. The estoppel requires that the claim could and should have been raised in the earlier proceedings as part of the same justiciable controversy, and the Court found that threshold was not met here.

  • Where family violence findings are made by the Family Court in the exercise of its statutory jurisdiction over property and parenting, the respondent to those proceedings is not treated as having "litigated" compensatory damages. The Court drew a clear distinction between being subject to findings in a statutory jurisdiction and voluntarily litigating a tort claim.

  • Partial factual overlap between earlier family law proceedings and a subsequent tort claim does not, of itself, establish oppression or abuse of process sufficient to strike out or stay the later proceedings.

  • Proceedings published with pseudonyms in the Family Court under s 121 of the Family Law Act 1975 (Cth) retained that confidentiality protection in the District Court, with the unredacted Family Court judgment sealed and restricted from non-party access.

Legislation and Cases Referenced

Legislation:
- Evidence Act 1995 (NSW), ss 126, 136
- Family Law Act 1975 (Cth), ss 79, 121

Cases:
- Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27
- Port of Melbourne Authority v Anshun (1981) 147 CLR 589
- Henderson v Henderson (1843) 67 ER 313
- Giunta & Giunta (No. 3) [2021] FamCA 272
- General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
- Rock v Henderson [2021] NSWCA 155
- Stokes v Toyne [2023] NSWCA 59
- Giller v Procopets (2008) VR 1
- Wardley Australia Ltd v State of Western Australia (1992) 175 CLR 514
- Stack v Coast Securities (No. 9) Pty Ltd (1983) 154 CLR 261
- Keating & Keating [2019] FamCAFC 46
- Pichard & Pichard [2022] FedCFamC1F 549
- Spagnardi & Spagnardi [2003] FamCA 905
- Crampton & Robinson [2013] FamCA 65
- In the Marriage of Warby [2001] FamCA 1469