Arkin and Blasberg (No 2) - [2019] FamCA 782

FAMILY COURT OF AUSTRALIA

ARKIN & BLASBERG (NO. 2)

[2019] FamCA 782

FAMILY LAW – COSTS – proposed interveners seeking to intervene with one business day left before the commencement of the trial – the issues the proposed interveners wising to agitate are already before the court – application too late – no explanation given for late application – likely consequence of granting application being the derailment of case through discovery – application refused – proposed interveners ordered to pay costs of the respondent.

Family Law Act 1975 (Cth), ss 79, 92(3), 117(2A)
Family Law Rules 2004 (Cth), r 6.05

Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Ms Arkin

RESPONDENT:

Mr Blasberg

INTERVENOR:

Ms W Arkin & Mr Z Arkin

FILE NUMBER:

MLC

4182

2016

DATE DELIVERED:

24 October 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Wilson J

HEARING DATE:

24 October 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr A Strum One of Her Majesty's Counsel with Mr A Barbayannis of counsel

SOLICITOR FOR THE APPLICANT:

Lander & Rogers

COUNSEL FOR THE RESPONDENT:

Mr G Dickson One of Her Majesty's Counsel with Mr P O'Shannessy of Senior Counsel

SOLICITOR FOR THE RESPONDENT:

Glezer Lanteri & Associates

COUNSEL FOR THE INTERVENOR:

Mr P Fary

SOLICITOR FOR THE INTERVENOR:

HWL Ebsworth Lawyers

Orders

Leave is granted to the proposed intervener to file an amended application in a case dated 23 October 2019.
The proposed intervener’s amended application in the application in a case filed in court on 24 October 2019 is dismissed.
The proposed intervener is to pay the costs of and incidental to the appearance of both Queen’s Counsel and Senior Counsel for the respondent husband on 24 October 2019.«FCA_LD221»

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Arkin & Blasberg has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: MLC 4182 of 2016

Ms Arkin

Applicant

And

Mr Blasberg

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Following a fairly detailed debate during the course of an adjournment application held on 11 and 19 July of this year, on 23 July of this year I delivered reasons on certain aspects of this litigation that fell for determination, in the course of which I required the parties to recast their trial directions, fixing the case for trial to commence next Monday 28 October 2019. The case has been on foot for some time. By and large, the parties complied with the directions made pursuant to consent orders, which I granted on 2 August 2019, requiring trial affidavits to be filed and served by certain times.
It seems that on the eve of the trial, with one clear business day between now and its commencement, parties have emerged essentially from a side wind, wishing to participate in the trial. Today, a reasonably exhaustive discussion took place about the consequences to the trial if leave were granted in the manner sought in the amended version of the application in a case filed 24 October of this year for that intervention. In my view, it is way too late for this application to be brought and the interests that I was told are to be agitated, in my view, can be adequately agitated within the confines of the present case without the involvement of interveners.
It must not be forgotten that in accordance with the observations of the High Court in Stanfordv Stanford[1] as a primary obligation in a disputed property case, of which this is an exemplar, I must make determinations about the legal and equitable interests involved. By definition, that will require me to examine in exquisite detail questions of ownership of V Pty Ltd and entitlements to the proceeds of sale of M Street. In the course of that determination, it will be necessary for me to observe who is the correct party entitled to the property to be divided.
[1] (2012) 247 CLR 108
Forcefully, and with his customary skill, Mr Fary of counsel for the proposed interveners invited my consideration to the terms of the amended application in a case in which he contended that the issues, if the participation of the interveners were granted, were relatively confined. In the course of fleshing out the argument, Mr Fary recognised that very little in the way of factual disputation would be involved nor time needed in determining the matters about which he was agitating. Mr Strum, one of her Majesty’s Counsel who appeared with Mr Barbayannis, indicated that he accepted that it was proper for the intervener to intervene for the effective determination of all issues consonant with the observations of the High Court in Stanford.
The risk associated with a favourable determination today in Mr Fary’s application lay in the practical consequences of doing what Mr Fary invited me to do. Mr Dickson One of her Majesty’s Counsel who appeared with Mr O’Shannessy of Senior Counsel urged that I rail hard against acceding to the request that was being sought by Mr Fary. Mr Dickson invited my consideration to three primary issues, contending at the threshold that the fundamental problem confronting the applicant for intervention was the absence of standing to seek the relief that the applicant sought, contending instead that he can only seek leave to intervene.
Mr Dickson invited my attention to rule 6.05 of the Family Law Rules, which makes provision for certain steps to be undertaken by a party who applies for leave to participate in a case where that party is not already a party to the proceeding. Mr Dickson also invited my attention to s 79(10) of the Family Law Act, contending that the proposed persons for whom leave may be granted includes any other person whose interest would be affected by the making of orders. In a nutshell, it was the contention of Mr Dickson and Mr O’Shannessy that in the proper determination of this case, questions about the entitlements in relation to ownership of V Pty Ltd and entitlements to proceeds of sale of M Street will be very much front and centre part of the determinations in this case. They said no intervener was necessary to agitate that.
To my mind, that proposition has considerable merit. Mr Dickson and Mr O’Shannessy quite properly contended that if leave were granted, by force of s 92(3) of the Family Law Act, the proposed interveners would have all the rights and obligations of any other party to the proceeding, including the obligations in respect of discovery, carrying with it the likelihood – dare I say, certainty – of attenuated delays and inevitably the derailment of the trial date scheduled for next Monday, one clear business day from today.
Soon after Mr Fary got to his feet, I asked him to tell me why the delay, manifest as it is in this case, resulted in this application being made with one clear day to the trial. In my view, no adequate explanation was given. The questions that are in dispute in respect of the ownership of V Pty Ltd and the entitlement to the proceeds of sale of M Street have – at least since I was involved in the case in July of this year – been very real issues for determination. When it comes to pass that I have to make determinations in accordance of s 79(4), decisions will be made on the two issues that are sought to be agitated in this case whether or not Mr Fary’s client participates in the case.
To my mind, especially having regard to the ill health of the respondent, which was the subject of the adjournment application in July, no good reason has been given to torpedo the trial date scheduled for next Monday. In my view, the issues that Mr Fary has eloquently put forward as being issues for determination will in fact fall for determination but most likely by the client of Mr Strum QC and Mr Barbayannis. At all events, they will be matters that must be determined by me.
For those reasons, I dismiss the amended application in a case.
Having just delivered the foregoing reasons of my determination in respect of the amended application, Mr Dickson QC and Mr O’Shannessy SC have sought their clients’ costs of this application before me, contending that under s 117(2A) of the Family Law Act the application as amended was wholly unsuccessful. Mr Fary resisted that application contending that, by reason of Mr Arkin’s affidavit filed in this application, a particular factual situation has been flushed out which, prior to that affidavit, would not have been brought to the attention of the parties.
It seems to me that Mr Fary’s point may be right but that is a collateral consequence only of this application. His client’s application was wholly unsuccessful with the consequence that the costs of and incidental to this application, including Senior Counsels’ fees of the respondent should be paid by the proposed intervener.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 24 October 2019.

Associate:

Date: 29 October 2019