Carne and Carne and Ors - [2008] FMCAfam 573

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CARNE & CARNE & ORS

[2008] FMCAfam 573

FAMILY LAW – Application for summary dismissal – application dismissed.

Family Law Act 1975, s.79
Federal Magistrates Court Rules, r.13.10

Australian Building Industries v Stramit Corporation Limited [1997] FCA 1318
Dey v Victorian Railways Commission (1949) 78 CLR 62
General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125
Seven Network Limited v News Limited (No.4) (2005) 214 ALR

Applicant:

MS CARNE

First Respondent:

MR CARNE

Second Respondent:

MR A

Third Respondent:

MS B

Fourth Respondent:

MS C

Fifth Respondent:

MR D

File Number:

PAM1965 of 2005

Judgment of:

Altobelli FM

Hearing date:

16 May 2008

Date of Last Submission:

16 May 2008

Delivered at:

Sydney

Delivered on:

22 May 2008

REPRESENTATION

Counsel for the Applicant:

Ms Frizzell

Solicitors for the Applicant:

Egan & Simpson

Solicitor-Advocate for the first Respondent:

Ms McGarvey

Solicitors for the first Respondent:

McGarvey Lawyers

Counsel for the second to fifth Respondents:

Ms Matter

Solicitors for the second to fifth Respondents:

Webb Lawyers

ORDERS

The Application in a Case filed 10 October 2007 is dismissed.
The matter be adjourned to 2 March 2009 at 9.30am for mention.
The matter be adjourned to 30 March 2009 at 10.00am for a three day final hearing.
The Wife file and serve any affidavits on which she intends to rely regarding the property proceedings and the claim against the Second to Fifth Respondents by no later than 4.00p.m on 12 December 2008. No further affidavits to be filed after that date without leave of this Court.
The Husband file and serve any affidavits on which he intends to rely by no later than 4.00p.m on 6 February 2009. No further affidavits to be filed after that date without leave of this Court.
The Second to Fifth Respondents file and serve any affidavits on which they intend to rely by no later than 4.00p.m on 26 February 2009. No further affidavits to be filed after that date without leave of this Court.
The Applicant pay the hearing fee or obtain a waiver of that fee by no later than 4.00p.m on 12 December 2008.
No later than two (2) working days prior to hearing each party forward to my Associate a document setting out:
(a)The affidavits on which the party will rely at hearing; and
(b)The Orders sought at hearing; and
(c)One list between the parties setting out the values of assets and liabilities to be relied on at hearing, each to be marked “agreed” or “in dispute”.

IT IS NOTED that publication of this judgment under the pseudonym Carne & Carne is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

PAM 1965 of 2005

MS CARNE

Applicant

And

MR CARNE

First Respondent

MR A

Second Respondent

MS B

Third Respondent

MS C

Fourth Respondent

MR D

Fifth Respondent

REASONS FOR JUDGMENT

Ex tempore

The application in a case in this matter is filed by the second, third, fourth and fifth respondents in these proceedings. It is, in substance, a summary dismissal application that is advanced on the basis that the applicant wife in these proceedings has failed to adequately particularise her claim and properly respond to the evidence that has been comprehensively advanced on behalf of the second to fifth respondents.
By way of background, the substantive proceedings are between the applicant wife and the respondent husband and they are pursuant to s.79 of the Family Law Act; that is, it is an application for alteration of property interest.
The applicant wife was successful before Federal Magistrate Spelleken in Brisbane in having the second to fifth respondents joined to the proceedings. They are respectively the husband's parents, brother and his brother's wife.
There are strong complaints by the second to fifth respondents about being denied procedural fairness before Federal Magistrate Spelleken, but the fact is those orders were made on 3 April 2007, and rather than appeal, they filed a notice of address and complied with directions made, including evidence by way of affidavits and production of documents.
The applicant wife challenges the veracity of certain transactions between the respondent husband and the other respondents, the eventual result of which were that the proceeds of sale of the former matrimonial home were paid to the second to fifth respondents rather than to a trust account or to a husband to await the s.79 order. By joining the second to fifth respondents, the wife seeks, in effect, to potentially enlarge the pool of assets against which she may claim.
The substance of the second to fifth respondents' case, indeed supported by the respondent husband, is that the payments to the respondents were proper repayments of amounts owed in accordance with clearly documented contractual arrangements. Indeed counsel for the second to fifth respondents submitted that the evidence filed indicates a strong paper trail to establish an obligation by the respondent, and indeed his wife to repay the debts.
I comment that I concur with counsel. There is prima facie a strong paper trail but it is untested.
The applicant wife says, however, that there are important factual issues that need to be tried at a hearing arising out of these contractual arrangements. She hinted at issues of authenticity. She suggested there would be serious issues about quantification of the alleged liabilities. Her counsel asserts that she should be entitled to test the evidence at a final hearing.
All of these arguments are put by way of submissions. The affidavit of evidence of the wife is scant in its treatment of these issues. It is unclear to me whether the wife is keeping her metaphorical gunpowder dry or whether she hasn't yet found the gunpowder. She was unrepresented for a period of time but is now legally represented.
The applicable law is contained, in the present case, in the Federal Magistrates Court Rules and specifically r.13.10, which I will read onto the transcript.
Rule 13.10 is entitled "Disposal by summary dismissal":
The Court may order that a proceeding be stayed or dismissed generally or in relation to any claim for relief in the proceeding if the Court is satisfied that: (a) the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim; or (b) the proceeding or claim for relief is frivolous or vexatious; or (c) the proceeding or claim for relief is an abuse of the process of the Court.
Rule 13.10 is very similar in its terms to the equivalent rules contained in, for example, the Federal Court Rules. Thus, the issue in this present case is whether the claim by the wife against the second to fifth respondents has no reasonable prospect of successfully prosecuting the proceeding or claim.
The present situation is one where it is the respondent i.e. the defendant to the claim, who seeks summary judgment.
There are many relevant authorities that cover the area but one relevant one, and a helpful one, which applies order 20, r.2 of the Federal Court Rules, in very similar terms to the Federal Magistrates Court Rules, is a decision of Sackville J in Seven Network Limited v News Limited (No.4) (2005) 214 ALR at 686, and in paragraph 14 of his Honour's judgment he says as follows:
There was no serious dispute as to the principles to be applied on a summary dismissal application. It is only a very clear case indeed that will justify the summary intervention of the Court since litigants are not to be deprived the right to submit genuine controversy for determination.
He refers to the decision of the High Court in Dey v Victorian Railways Commission (1949) 78 CLR 62. He goes on to say:
Accordingly, the power to order summary judgment should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.
And he cites another High Court decision, General Steel Industries v Commissioner for Railways (NSW) (1964) 112 CLR 125. He goes on to say a Full Court of the Federal Court in Australian Building Industries v Stramit Corporation Limited [1997] FCA 1318 approved of the formulation of Millett J in Lonhro v Fayed (No.2) (1992) 1 WLR at 1 where his Honour said:
A plaintiff is entitled to pursue a claim in these courts however implausible and however improbable his chances of success. Unless the defendant can demonstrate shortly and conclusively that the plaintiff's claim is bound to fail or is otherwise objectionable as an abuse of process by the Court, it must be allowed to proceed to trial.
Applying the facts to the present case, the respondents have failed to establish that the applicant's claim is bound to fail. At the very least, the applicant has an arguable case on the issue of quantification.
The applicant lives to fight another day. Let the applicant be very clear about something. In this Court, if third parties are joined without substance, there will be serious consideration given as to a costs order. One does not lightly bring in third parties to litigation between the husband and the wife.
Accordingly, the application in the case is dismissed and the applicant lives on, at least for the time being.

I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Altobelli FM

Associate: Monique Robb

Date: 6 June 2008