Banaszak and Executors of the Estate of Mr S Mandia and Anor (No 2)
[2015] FamCA 235
•9 April 2015
FAMILY COURT OF AUSTRALIA
| BANASZAK & EXECUTORS OF THE ESTATE OF MR S MANDIA AND ANOR (NO 2) | [2015] FamCA 235 |
| FAMILY LAW – Summary dismissal application – Applicant alleged in her initiating application that a de facto relationship had broken down but her subsequent evidence gave rise to questions as to whether in fact that was so – Respondents submitted that the applicant’s own evidence made her application doomed to fail based on jurisdiction maintaining that if the Court found that the breakdown had not occurred when the application was filed, it was fatal – Consideration of the principles set out in Hayes v Edington reject the question of the initiating application being a nullity even if the breakdown of the relationship had not occurred at that time – Principles considered as to why that is so – Based on the principles of summary dismissal being exceedingly rare, application to summarily dismiss fails. |
| Family Law Act 1975 (Cth) |
| Beck and Beck (2004) FLC 93-181 |
| APPLICANT: | Ms Banaszak |
| RESPONDENT: | The Estate Of Mr S Mandia |
| INTERVENOR: | Mr H Mandia |
| FILE NUMBER: | MLC | 6072 | of | 2012 |
| DATE DELIVERED: | 9 April 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 1 April 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Fary |
| SOLICITOR FOR THE APPLICANT: | Barbayannis Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Strum |
| SOLICITOR FOR THE RESPONDENT: | Marshals & Dent |
| COUNSEL FOR THE INTERVENOR: | Ms Williams |
| SOLICITOR FOR THE INTERVENOR: | Kenna Teasdale Lawyers |
Orders
That the amended response filed 12 November 2014 in so far as it sought orders for the dismissal of the applicant’s application on the basis of want of jurisdiction is dismissed.
That all extant applications are adjourned to the case management judge for fixing on a date to be fixed for the purposes of the determination of any application by the respondents for a declaration under s 90RD of the Family Law Act 1975 (Cth).
IT IS CERTIFIED:
That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Banaszak & Executors of the Estate of Mr S Mandia and Anor (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 6072 of 2012
| Ms Banaszak |
Applicant
And
| The Estate Of Mr S Mandia |
Respondent
And
| Mr H Mandia |
Intervener
REASONS FOR JUDGMENT
The Legal Personal Representatives of the Estate of the late Mr S Mandia seek to have proceedings by Ms Banaszak summarily dismissed on the basis that the Court has no jurisdiction to alter the property interests of the deceased. They are joined in that application by Mr H Mandia who, apart from being the deceased’s son, is also an intervener in his own right.
These are proceedings that were commenced by Ms Banaszak (the applicant) on 5 July 2012 under Part VIIIAB of the Family Law Act 1975 (Cth) (“the Act”). She claimed at the time, and it was not then denied, there had been a de facto relationship between she and Mr S Mandia (“Mr S Mandia”).
The discrete issue in this case revolves around whether the relationship had broken down on 5 July 2012 when the application was filed. It is submitted that if it was not, the application was a nullity. Even if it was the case that the relationship had not broken down on 5 July 2012, does an amended application thereafter make any difference?
The proceedings have had a tortuous history at horrendous costs to the applicant. It was generally said that when she began the proceedings, she had an unencumbered apartment. She has spent something in the vicinity of $500,000 in legal fees. It will be seen therefore that a loss of the proceedings will have catastrophic financial consequences for her. She is 77 years of age.
In 2011, the applicant had engaged solicitors ostensibly to obtain advice about a VCAT issue associated with the guardianship of Mr S Mandia. She then went to another firm of solicitors who acted for her in relation to what were described as “family law” proceedings. Having begun those, she moved to another firm of solicitors but terminated their instructions just before the discrete hearing from which these reasons spring, became unrepresented for a time and then, immediately before the hearing, engaged her present lawyers. The costs have spiralled.
Mr S Mandia died in 2013 leaving a will under which he left the applicant $500,000. At the time of his death, he suffered from dementia. The Executors of his will have been trying to finalise the estate since his death but have had to participate in these proceedings. Thus, the Estate too is carrying significant legal costs.
To compound problems, Mr H Mandia (the intervener) joined the proceedings because a property in D Street was said to have been the subject of a trust in his favour albeit the registered proprietor was his father. The applicant denies the existence of a trust and claims the property is part of the assets she desires altered. Thus, the intervener is incurring significant costs and desires a resolution as well.
Whilst all of those problems are complicated, the discrete issue I am dealing with is a summary dismissal application.
Section 123 of the Act provides for the Judges of this Court to make rules. I turn initially to those rules.
Rule 10.12 provides that a party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a)the court has no jurisdiction;
(b)the other party has no legal capacity to apply for the orders sought;
(c)it is frivolous, vexatious or an abuse of process; or
(d)there is no reasonable likelihood of success.
The application of the Estate and the intervener is that the proceedings be dismissed for want of jurisdiction.
On an application for summary dismissal, the respondent must demonstrate that, on the material before the court, the proceedings should not be permitted to go to trial because it is apparent that it must fail.
The power to order the summary dismissal of a claim must be exercised with “exceptional caution” (General Steel Industries Inc v Commissioner for Railways (NSW)[1964] HCA 69; (1964) 112 CLR 125, 129 (Barwick CJ)) and “should never be exercised unless it is clear that there is no real question to be tried” (Fancourt v Mercantile Credits Ltd [1983] HCA 25; (1983) 154 CLR 87, 99 (Mason, Murphy, Wilson, Deane & Dawson JJ)).
In Dey v Victorian Railways Commissioners[1949] HCA 1; (1949) 78 CLR 62, Dixon J said:
A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.
(See also Webster v Lampard[1993] HCA 57; (1993) 177 CLR 598, 602 (Mason CJ, Deane & Dawson JJ); Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 [24] (French CJ & Gummow J)).
Hence, the Court should approach this application with exceptional caution.
An application for summary dismissal must not be treated as though it were the preliminary trial of a question of law (See Lonrho Plc v Fayed[1992] 1 AC 448)
It has also been said that extensive legal analysis may be necessary in some cases to establish that the applicant's case is so clearly untenable that it cannot possibly succeed. (See Dey (supra) and also General Steel Industries (supra)) In this case, it said by the respondents that an extensive legal analysis is not necessary and they rely on the specific decision of Benjamin J in Hayes & Eddington (No 3) [2014] FamCA 336 and the general principles of the Full Decision in Norton v Locke (2014) 50 FamLR 517. I return to those below.
Where the proceedings are unusual, a measure of caution should be exercised where not only is there an argument about the facts but also the law because on summary dismissal principles, the focus is narrow. The assumption is that the facts as revealed to the Court are accepted (and this case, the respondent accepts the facts relied upon by the applicant) and the law in relation to jurisdiction is binding. (see for example British American Tobacco Australia Ltd v The State of Western Australia [2003] HCA 47; (2003) 217 CLR 30 per Kirby J and The State of Victoria v Richards [2010] VSCA 113; (2010) 27 VR 343)
The approach of this Court in respect of those principles can be seen from the following analysis. The basis on which an application for summary dismissal is to be determined is to examine the substance of the claim supported by the evidence upon which the applicant relies (see for example Custodio & Pinto & Ors (2006) FLC 92-279). The principles to be applied are:
(a) The power for summary dismissal is a discretionary one.
(b) Relief is rarely and sparingly provided.
(c) The parties seeking summary dismissal must show that the application is doomed to fail or as has been otherwise described “that the opponent lacked a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”.
(d) A weak case or one that is unlikely to succeed is not sufficient to warrant termination.
(e) If there is a serious legal question to be determined, it should ordinarily be determined at a trial.
(f)If notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleadings.
(see Beck and Beck (2004) FLC 93-181, Pelerman v Pelerman (2000) FLC 93-037 at 87,582)
An application for summary dismissal must be determined on the basis only of the material put forward by the respondent, that is, the applicant for the substantive relief (Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 at 544-5).
Much of this case revolves around the words “breakdown of a de facto relationship” because it is said (and I agree) that the Court has no power until there is established a breakdown of the relationship. But upon what date is jurisdiction established? Is it the date upon which the filing of an application for relief occurred or does that matter and is the question answered by whether or not on the date of the hearing, the parties’ de facto relationship has broken down? The power in the Act can only be exercised if jurisdiction is first established.
Caution should be adopted here and particularly in a summary dismissal application because words mean different things to different people. As an example of that point, in Sinclair & Whittaker (2013) FLC 93-551, the Full Court approved the following passage from Lynam v Director General of Social Security (1983) 52 ALR 128 where Fitzgerald J at page 131 said:
Each element of a relationship that draws its colour and its significance from the other elements, some of which may point at one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitude and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.
Is the substantive proceeding doomed to fail?
I turn then to the facts that are clear before turning to the evidence of the applicant.
On 5 July 2012, the applicant filed the application to begin the proceedings. There are three important things about the document:
(a)It sought orders that “the assets and liabilities of the relationship be divided between the parties as this Honourable Court deems appropriate”; and
(b)It alleged that the parties began living together on 1 January 2004 and under the form’s heading of “date of final separation” was written “28 February 2012”;
(c)Then, for jurisdictional purposes, as to whether the asserted de facto relationship “broke down” after 1 March 2009, the applicant wrote that it did.
I would therefore conclude that on the face of the document, the applicant was invoking the relevant jurisdiction. This Court is not a court of pleadings but one must assume that faced with that document, the applicant was saying to the Court that she had sufficient evidence to establish the pleaded facts.
As will be seen from the facts below, there is a distraction in this case because of what the applicant’s lawyers later filed when they lodged (and the applicant signed) an amended application. In respect of two of the three matters set out in paragraph 24 above, the applicant:
(a)in response to the question of cohabitation, asserted that the parties commenced to live together on 1 January 2004; and
(b)in response to the question “Date of final Separation”, wrote “not applicable”
In a very curious response to the question about her own “description” (whatever that means), the applicant wrote:
Party to a de facto relationship. Separation by exclusion from deceased (sic) life.
This amended application was filed on 16 September 2014 by which time, Mr S Mandia had died. Not that it matters now, but there was no prayer for relief in relation to leave to proceed because of Mr Mandia’s death.
It was only after this amended application was filed that the respondents began to focus on both jurisdiction and also what evidence was being asserted.
On the face of this amended “pleading”, the applicant appeared to be asserting that the de facto relationship had not broken down but rather, that she was separated by being excluded from Mr S Mandia’s life prior to his death. That exclusion becomes apparent from the facts that follow.
By 5 July 2012, Mr S Mandia clearly was unwell. He was diagnosed with dementia in 2010-2011 and was admitted into aged care in October 2011. A VCAT order had been made on 23 May 2011 appointing two administrators of his estate neither of whom was the applicant. By virtue of that VCAT order and because of rule 6.10 of the Court’s Rules, the administrators became his case guardians for the purposes of the proceedings issued by the applicant.
On 24 August 2012, the Case Guardians filed a response. This document became a controversial issue in these proceedings. In respect of the applicant’s pleaded facts, they did not take issue what she had set out relating to jurisdiction.
Counsel for the applicant submitted that the Case Guardians had accepted the jurisdictional facts. It was submitted that:
· The Case Guardians’ response document was an admission that the de facto relationship had broken down on 5 July 2012 bearing in mind that no challenge had been made to the pleaded suggestion that the relationship broke down on 28 February 2012; and
· Even if there was some suggestion that there had not been such a breakdown, the action of filing a response gave rise to a cause of action in itself.
It was submitted on behalf of the applicant that the Case Guardians had actual authority to make the admission. That was denied by the respondents. In Jennings & Jennings (1997) FLC 92-773, Dessau J heard a case where one of the issues was whether the husband and wife had separated. The husband was hospitalised suffering from dementia. It was never suggested he had given instructions to the case guardians. Dessau J examined the powers of the case guardians arising from their appointment under the State Tribunal order holding that they did not include (indeed, her Honour concluded that they precluded) the ability to form the intent to sever a person’s marriage.
It was submitted by counsel for the Estate that Mr S Mandia’s dementia precluded the guardians from getting instructions. The role of a case guardian was not argued but it raises questions of whether the filing of the response is an assertion in the case guardian’s own right. I am not in a position to decide absent much more evidence and certainly not on the papers. Importantly, as in Jennings (supra), I am unsure at what point the case guardians should have had knowledge to participate in the proceedings. It is important not to become distracted by that issue either because this application is being determined on the applicant’s material.
In any event, nothing was put to me to say that the Guardianship Order enabled the case guardians to make such an admission and accordingly, I agree with Dessau J. That decision however is of limited value as it also related to a divorce. Accordingly, I accept, the Case Guardians could not have made the admission of the basis of instructions.
It was submitted by counsel for the applicant that as the administrators were also personally connected closely to Mr S Mandia, they could have made the admission from their own personal knowledge. That too has to be rejected unless there is some specific evidence to support a conclusion that the case guardians had learned from conversations or behaviour that Mr S Mandia did want to cause the breakdown of the relationship to be accepted or acknowledged. There is no such acknowledgment here.
In April 2013, with the respondents presumably working on the basis of the assertion of the February 2012 separation, they received an affidavit from the applicant. In that she said that in due course she would deal more specifically with the history of the relationship and the “effect” that the death of Mr S Mandia had had on her. She said that despite the “separation”, she still loved him.
It was only in September 2014 as the matter began its pathway to trial that the foreshadowed comprehensive affidavit of the evidence by the applicant was produced. Its production was a debacle upon which I have ruled in another set of reasons. I have set out the amended application as it was portrayed and upon receipt of that, the respondents raised the jurisdictional question.
The applicant asserted her signed application was wrong and prepared without her instructions but she did not deny that her trial affidavit was wrong. The two documents were prepared by different lawyers from the one office. In my view, the amended application simply highlights a difficulty that the applicant may have at trial in establishing jurisdiction particularly now that Mr S Mandia is deceased.
In her affidavit, the applicant said:
· From May 2011 until October 2011, she spent 24 hours a day ensuring that Mr S Mandia was properly cared for;
· In October 2011, she was told by one of Mr S Mandia’s administrators that Mr S Mandia was to move to an aged care facility and that it was time for her to look after herself;
· Mr S Mandia was admitted to the nursing home in October 2011 and the applicant continued to live in his property until “on or about 29 February 2012”;
· She was advised to institute proceedings in the Family Court for a property settlement;
· She continued to visit Mr S Mandia daily for many hours;
· Mr S Mandia remembered who she was and recognised her until she was “forced” to stop visiting him;
· Mr S Mandia’s family were resistant to her continued involvement in Mr S Mandia’s life;
· Mr S Mandia did not want her to leave;
What must be remembered at this time was that not only had the applicant been advised to institute proceedings but in July, she did so.
By letter dated 6 August 2012, written by one of the administrators (who is also a solicitor), based on Mr S Mandia’s health, the applicant was asked not undertake a visit without consent and as a consequence, she said she was completely heartbroken.
The applicant then said:
Upon receiving the 6 August 2012 letter I reached the conclusion that it was not worth trying to fight (the family) and the forces they represented any further. I lost the will to fight.
It was submitted on behalf of the respondents that the version set out by the applicant in her trial affidavit was incomplete and discovery showed that. When the hearing began, counsel for the applicant objected to the use of material outside of the applicant’s affidavit but I ruled that it should be read. The documents do complete the picture and in my view, the respondents were entitled to point to apparent inaccuracies of the applicant’s affidavit because they were aware of them from the material they had seen under a subpoena. I gave the applicant’s counsel an opportunity to file further material which he did but that did not assist the applicant.
Solicitors for the applicant wrote to the administrator saying that the applicant wanted to continue to visit Mr S Mandia but she would not do so if it affected his health. As late as 24 August 2012, the applicant’s solicitors wrote again noting they had not received any response from the administrator and wanted to know when visits could recommence.
It was submitted by the respondents that it was therefore clear on the applicant’s own evidence that the breakdown of the relationship could not have occurred until at the earliest, 6 August. Putting an alternate possibility, counsel for the applicant submitted that the very fact that the applicant went to lawyers in July was indicative of a breakdown of the relationship. The two concepts do not sit comfortably together. In both positions, there is an assumption that partners do not visit one another or have a healthy view about one another after litigation commences. I am not confident that, absent a testing of the evidence, I could conclude that. One might wonder why the applicant would seek advice in July but there is also an assumption that because she did so, the relationship was then terminated. On a summary dismissal application, this might be an example of a weak case but I could not conclude that it is doomed to fail because of that.
I raised the question of whether the filing of a response amounts to a cause of action on its own. Whilst I accept that is possible, for the reasons that follow, it unnecessary for me to decide.
My attention was drawn to Hayes & Eddington (supra). There, an application was filed in similar circumstances but more particularly, it was filed at a time when the relationship was specifically acknowledged not to have broken down. It was said to have been filed to “preserve” entitlements. The relationship did thereafter breakdown and before the hearing took place, but the argument was whether the initiating application was itself a nullity.
Benjamin J (at para 115) said that if the application was filed without the requisite breakdown, the Court’s power was limited to determining whether it had jurisdiction. His Honour ruled (para 116) that once a proceeding had been commenced without jurisdiction, the defect could not be cured by the filing of an amended application in the very same proceeding. If it is suggested that the critical issue is the filing date, I have reservations. This decision was relied on by the respondents.
Benjamin J relied upon Whiteoak & Whiteoak (1980) FLC 837 which was approved by the Full Court in Price & Underwood (2008) 39 Fam LR 614. In my view, both of those decisions are distinguishable. Both related to a divorce. The specific provision contemplated in Whiteoak was s 48(2) of the Act. Section 48 provides as follows:
(1) An application under this Act for a divorce order in relation to a marriage shall be based on the ground that the marriage has broken down irretrievably.
(2) Subject to subsection (3), in a proceeding instituted by such an application, the ground shall be held to have been established, and the divorce order shall be made, if, and only if, the court is satisfied that the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for the divorce order. (emphasis is mine)
(3) A divorce order shall not be made if the court is satisfied that there is a reasonable likelihood of cohabitation being resumed.
There is the unique reference to the filing date. The Full Court in Whiteoak (supra) certainly said that an amendment does not alter the date upon which the application was filed but I consider their Honours were referring to the incurability of the fact that the application had not been filed as the specific provision prescribed. A similar problem was contemplated in Price (supra).
I have been unable to find any similar reference in the Act relating to other applications such as the one here.
Section 4 defines a de facto financial cause as proceedings between the parties to a de facto relationship with respect to (whatever cause of action)…after the breakdown of the de facto relationship.
Proceedings is defined to mean a proceeding in a court.
Section 4AA defines the meaning of a de facto relationship and when a person may be considered to be in one.
In Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; (2000) 199 CLR 135 at 148 the High Court held:
The term “jurisdictional fact” (which may be a complex of elements) is often used to identify that criterion, satisfaction of which enlivens the power of the decision maker to exercise a discretion.
This is all about whether the jurisdictional facts have been established. In my view, they are not established by the document which invokes the jurisdiction of the Court but rather the determination of the Court. Once the Court has jurisdiction, its power is contained in Part VIIIAB where orders can and cannot be made (see s 90SA, s90SD, s 90SE, s 90SK and s 90SM). None of those provisions refers to anything more than the power of the Court to make orders if it is satisfied that there are property settlement proceedings after the breakdown of a de facto relationship.
If immediately upon receipt of the application, the respondent objected that there was no jurisdiction, the Court would have to so rule if not satisfied that there was a de facto financial cause.
Benjamin J said that once a proceeding had been commenced without jurisdiction, that defect could not be cured by the filing of an amended application. I disagree. Proceedings are commenced by application but all that means is that the jurisdiction is being invoked. Whether the Court can exercise any power depends upon it being first satisfied that it has jurisdiction. Thus, in my view, jurisdiction does not come from the filing of the application but from the Court being satisfied that the parties’ relationship has broken down.
A court has jurisdiction to determine whether it has jurisdiction (Norton & Locke (2013)50 Fam LR 517). That is the time for the Court to decide whether it has the jurisdiction because of the breakdown of the de facto relationship. It is conceivable that subsequent to the issuing of the application, the jurisdiction may become alive by virtue of the requirements of the Act. The position adopted in Hayes (supra) would mean that the Court would go through a determination and find that the parties’ relationship had broken down but not when the application was filed. They would then have to start all over again whereupon there would be no impediment to jurisdiction.
There is some support for this concept in such cases as Emanuele v ASC [1997] HCA 20; (1997) 188 CLR 114 and Beugelaar v Springvale [1969] V.R. 3.
Counsel for the Estate in a very helpful submission addressed the various aspects of how the authorities have viewed a breakdown of a relationship of a marriage. He referred me to Clarke v Clarke (1986) FLC 91-778, Todd v Todd (No 2) (1976) FLC 90-008 and Franks v Franks (1976) FLC 90-032 but I think caution needs to be placed around those decisions because of the time that has elapsed and the fact that they specifically refer to marriages.
The Queensland Court of Appeal in S & B [2004] QCA 449 Dutney J, with whom McPherson and Williams JJ agreed, said:
….a de facto relationship ends when one party decides he or she no longer wishes to live in the required degree of mutuality with the other but to live apart. It does not seem to me that it is necessary to communicate this intention to the other party provided that the party that is desirous of ending the relationship acts on his or her decision.
In Moby v Schulter[2010] FamCA 748; (2010) FLC 93-447 Mushin J said:
The second specific element is the concept of “living together”. In my view, if a couple do not live together at any time, they cannot be seen as being in a de facto relationship. However, the concept of “living together” does not import any concept of proportion of time. In particular, it does not require that a couple live together on a full-time basis.
In Vaughan & Bele [2011] FamCA 436, I agreed with Mushin J in Moby & Schulter for the purposes of deciding whether the parties were in a de facto relationship and thought that it was they who defined the nature of their relationship. I said it may evolve and alter dramatically over time. But I then thought that the critical question about when something came to an end was whether it existed in the first place or, as in many relationships, it satisfied the legal requirements such that it could be said to exist at some or various times. I opined that there was a distinction between actions which connote unhappiness in a relationship and the termination of it. That is, termination has a distinct finality about it but it must be such that both parties acknowledge but not necessarily accept, that at least one of them has decided to permanently end the relationship.
It is important to note, as the Full Court did, in Sinclair & Whittaker (supra) that whether or not there is or was a de facto relationship at any particular time was a matter for the Court. There are other helpful decisions such as Jonah & White [2011] FamCA 221.
I find therefore that the breakdown of the relationship and when it occurred, is a matter of some conjecture but one for the Court rather than the parties. But, even if on the indicative face of the applicant’s own material, a court might question whether there was a breakdown, there is still the jurisdictional issue to be determined on its facts.
As I have indicated, the power for summary dismissal is a discretionary one and relief should be rarely used particularly where there a potential for argument not just about the facts but also about what the law means. If the test is that the application is doomed to fail particularly for want of jurisdiction, that could not occur here on the written submissions, argument and the applicant’s own material.
The unusual feature of this case is that there have been many lawyers look over the facts and much is contentious. I therefore consider there is a serious issue to be tried. I am very conscious of the costs and what obviously lies next having regard to the applicant’s age but it seems there is little alternative.
Counsel for the respondents submitted that if the Court was not prepared to summarily dismiss the application, then there would have to be a threshold hearing to decide when the de facto relationship broke down despite the way in which the applicant pleaded her various applications. That is most unfortunate, but I agree.
I have not made any real reference to a very comprehensive submission drawn by the applicant’s counsel’s predecessors and one of his own all of which were helpful and I have considered them but in my view, the issues are as simply distilled as I have described them.
In my view, the discretion should be exercised in the applicant’s favour.
I certify that the preceding Seventy Three (73) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 April 2015.
Associate:
Date: 9 April 2015
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