Brown and Murdoch and Ors - [2013] FamCA 757

FAMILY COURT OF AUSTRALIA

BROWN & MURDOCH AND ORS

[2013] FamCA 757

FAMILY LAW – PRACTICE AND PROCEDURE – Application by interveners to be joined as parties to the proceedings.

Administration and Probate Act 1958 (Vic)
Family Law Act 1975 (Cth)
Judiciary Act 1903 (Cth)
Limitation of Actions Act 1958 (Vic)

Bigg v Suzi(1998) FLC 92-799
Friar & Friar[2011] FamCAFC 71
General Steel Industries Inc v Commissioner for Railways (N.S.W.)[1964] HCA 69; (1964) 112 CLR 125
Lindon v The Commonwealth (No 2)[1996] HCA 14; (1996) 70 ALJR 541

APPLICANTS:

Mr Savva and Mr Gould as Executors of the Estate of the late Mr Brown

RESPONDENT:

Ms Murdoch

INTERVENERS:

Ms B, Ms C, Mr D, Ms E, Mr F

FILE NUMBER:

MLC

9886

2010

DATE DELIVERED:

8 October 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

2 October 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Nicholson

SOLICITOR FOR THE APPLICANT:

Schetzer Constantinou

COUNSEL FOR THE RESPONDENTS:

Mr Testart

SOLICITOR FOR THE RESPONDENTS:

Kennedy Partners

COUNSEL FOR THE INTERVENERS:

Mr Isles and Mr Robertson

SOLICITOR FOR THE INTERVENERS:

Tolhurst Druce & Emmerson

Orders

That Ms B, Ms C, Mr D, Ms E and Mr F are all joined as parties to the proceedings.
That save as to any issues of costs, the application in a case filed 27 September 2013 by the newly joined parties is dismissed.
That each of the applicant and the first respondent have leave to file further written submissions relating to the costs arising out of the injunctive orders made on 9 August 2013. The applicant to file by no later than 4.00pm on 10 October 2013 and the response thereto by 4.00pm on 17 October 2013.
To the extent that the applicant and the first respondent do not agree as to how to deal with the affidavit of Mr M, leave is granted for the parties to seek a hearing on the discrete issue of that evidence.
That all applications for final orders be adjourned for hearing before Justice Cronin as the second case in the list commencing on 12 March 2014 at 10 am as a three day matter and that the evidence in chief of all witnesses be given by affidavit.
That by 4 pm on 31 January 2014 the applicant file and serve upon all other parties:
(a)an amended application setting out with precision the orders to be sought;
(b)the affidavits of evidence in chief of all witnesses including the applicant relied upon (noting that affidavits relied upon for previous hearings cannot be relied upon as evidence in chief); and
(c)a financial statement that complies with chapter 13 of the Family Law Rules.
That the applicant pay all setting down and trial fees by 4 pm on 31 January 2014.
That by 4 pm on 7 February 2014 the first respondent file and serve upon all other parties:
(a)an amended response setting out with precision what orders are being sought;
(b)the affidavits…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brown and Murdoch and Ors

Details

AGLC: Brown and Murdoch and Ors [2013] FamCA 757
Case: [2013] FamCA 757
Decision Date

CaseChat Overview and Summary

The parties before the Family Court of Australia were Mr Savva and Mr Gould, as Executors of the Estate of the late Mr Brown (the applicant), and Ms Murdoch (the respondent). Several individuals, Ms B, Ms C, Mr D, Ms E, and Mr F (the interveners), sought to be joined as parties to the proceedings. The dispute concerned property matters, and the interveners sought to participate in these proceedings.

The primary legal issues before the court were whether the interveners should be joined as parties to the property dispute, and the procedural directions for the setting down of all matters for trial. The court was required to consider the provisions of the Family Law Act 1975 (Cth), specifically section 92 which permits intervention in proceedings, and section 79(10) which outlines who is entitled to become a party when an application is made for an order under section 79. The court also considered its own Rules of Court, particularly Chapter 6 regarding the inclusion of persons whose rights may be directly affected by an issue in a case.

Justice Cronin determined that the interveners should be joined as parties to the proceedings. The court applied the principle that an application for intervention should be allowed if the person seeking to join demonstrates a prima facie position, acknowledging that such evidence is rarely tested at this preliminary stage. The court noted that while the interveners' evidence was vague and their joinder might increase costs and complexity, it was appropriate to allow them to intervene, particularly as any substantive orders sought would likely be against the respondent rather than the applicant. The court also made extensive procedural directions for the upcoming trial in March 2014, including requirements for amended applications, evidence in chief by affidavit, financial statements, and outlines of case.

Orders