Cleary & McKenzie (No 2)
[2023] FedCFamC1F 1009
•23 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cleary & McKenzie (No 2) [2023] FedCFamC1F 1009
File number: SYC 4879 of 2022 Judgment of: SCHONELL J Date of judgment: 23 November 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Joinder – Where the wife sought to join the husband’s sister and son to the proceedings on the basis that they held properties on trust for her and the husband – Where the joinder was opposed – Where the wife does not seek final relief against the putative respondents – Application dismissed. Legislation: Family Law Act 1975 (Cth) s 79
Family Law Rules 2004 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.01, 3.03
Cases cited: B Pty Ltd and Ors & K and Anor (2008) FLC 93-380; [2008] FamCAFC 113
Hancock Family Memorial Foundation Ltd v Fieldhouse (No 3) [2010] WASC 223
Riemann & Riemann and Ors (No. 3) [2017] FamCA 911
Victoria v Sutton (1998) 195 CLR 291; [1998] HCA 56
Wayne v Dillon (2008) 40 Fam LR 543; [2008] FamCAFC 204
Division: Division 1 First Instance Number of paragraphs: 29 Date of hearing: 22 November 2023 Place: Sydney The Applicant: Litigant in person Solicitor for the First Respondent: Holmes Donnelly & Co Solicitors The Second Respondent: Did not participate The Putative Third Respondent: Litigant in person The Putative Fourth Respondent: Litigant in person ORDERS
SYC 4879 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS CLEARY
Applicant
AND: MR MCKENZIE
First Respondent
MR STEWART
Second Respondent
MR V MCKENZIE(and another named in the Schedule)
Putative Third Respondent
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
22 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The applicant wife’s Application in a Proceeding filed 30 October 2023 is dismissed.
2.Costs of the application are reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Cleary & McKenzie has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
By Application in a Proceeding filed 30 October 2023, the applicant wife (“the wife”) seeks to join Mr V McKenzie (“the putative third respondent”) and Ms Gallagher (“the putative fourth respondent”) (collectively “the putative respondents”) to the proceedings.
On 6 November 2023, the Court made orders for the wife’s application to be filed and served by 8 November 2023, and listed the matter for hearing on 22 November 2023.
On the same day, the Court made orders extending the time for compliance with the trial directions, including for the wife to file her trial affidavit by 4.00 pm on 10 November 2023. The wife was already at that stage in default of directions made on 21 July 2023 for the filing of final affidavits. Before me yesterday, the wife indicated that she complied with that direction but that her affidavit is not complete.
On the hearing, the putative respondents, who all appeared unrepresented, seemed to indicate that they were unclear as to what was listed for hearing and questioned whether they had even been served with the application and affidavit. I indicated that I was satisfied that they had been properly served as their affidavits recorded that they were filed in accordance with orders made on 6 November 2023, as well as recording, in the case of the putative fourth respondent, that she had read the application of the wife and “totally dispute[s] the ‘facts’ (affidavit of the putative fourth respondent, paragraph 10) and, in the case of the putative third respondent, that he had read the affidavit of the wife.
The wife relied upon the following documents:
(1)Application in a Proceeding filed 30 October 2023; and
(2)Affidavit of wife filed 30 October 2023.
The first respondent husband (“the husband”) appeared but relied on no documents. His solicitor made some submissions on his behalf.
The putative respondents each filed an affidavit on 20 November 2023.
I heard submissions from the parties and indicated that I would dismiss the wife’s application and deliver reasons in due course. These are those reasons.
BACKGROUND
The wife was born in 1968 and is currently 55 years of age.
The husband was born in 1951 and is currently 71 years of age.
The putative third respondent is the husband’s son and the putative fourth respondent is the husband’s sister.
On 21 July 2023, this matter was set down for hearing for three days commencing 22 November 2023. As a consequence of the wife’s application for joinder, those trial dates were vacated, and the application listed for hearing on 22 November 2023.
The wife contended that four properties (a property at Suburb W and three dwellings in Suburb K) registered in the names of the putative respondents are held on trust for her and the husband.
The wife contended that the husband obtained a loan to purchase the Suburb W property which was secured against a property in Town X that is in her name. She said that in 2007, she discovered that the Suburb W property was actually registered in the putative third respondent’s name and not the husband’s. She deposed that both the husband and the putative third respondent told her that the property was being held on trust for husband. The wife also contended that she and the husband made mortgage repayments and rate payments totalling approximately $90,000, and that the husband received rent from a business operating from a building on the property.
The putative third respondent denied the wife’s contentions, contending that he purchased the Suburb W property for his own benefit.
In relation to the three dwellings in Suburb K, the wife contended that she and the husband wanted to purchase the dwellings and that the husband suggested receiving financial assistance from the putative fourth respondent. She said that the putative fourth respondent subsequently purchased the dwellings for around $300,000 and that she and the husband have made payments totalling approximately $92,600 in payment of the mortgages and levies.
The putative fourth respondent denied the wife’s contentions and stated that she would be seeking to recover monies loaned to the husband and wife.
APPLICABLE LAW - JOINDER
Section 79(10)(b) of the Family Law Act 1975 (Cth) provides that any other person whose interests would be affected by the making of an order is entitled to be joined to the proceedings.
The Act reflects what McHugh J observed in Victoria v Sutton (1998) 195 CLR 291 that:
77.The rules of natural justice require that, before a court makes an order that may affect the rights or interests of a person, that person should be given an opportunity to contest the making of that order. Because that is so, it is the invariable practice of the courts to require such a person to be joined as a party if there is an arguable possibility that he or she may be affected by the making of the order. …
(Footnote omitted)
Rule 3.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) provides:
3.01 Necessary parties
A person whose rights may be directly affected by an issue in a proceeding, and whose participation as a party is necessary for the court to determine all issues in dispute in the proceeding, must be included as a party to the proceeding.
While r 3.03(4) provides that a party who seeks to join someone to the proceedings after the first Court date must seek leave to do so.
In Wayne v Dillon (2008) 40 Fam LR 543, Warnick J observed in respect of the old Family Law Rules 2004 (Cth) that “necessary” meant:
18. … something more than “useful” or “expeditious”. In my view, if there are available alternative means to joinder to the substantive proceedings, of obtaining from a third person or someone already a party what is needed to allow an applicant for joinder to establish an identified “case”, joinder is unlikely to be “necessary”.
19. However, if a cause of action, recognisable at law, against a “third person” is particularised, then it is at least highly likely that joinder will be “necessary for the court to completely and finally determine all matters in dispute”. …
The Full Court in B Pty Ltd and Ors & K and Anor (2008) FLC 93-380 held as follows:
52. We do not accept that it is proper to allow joinder of third parties merely upon the formulation of a paragraph in, or to be added to, an application, on the basis that at trial facts to support the application may be asserted and proved. Sufficient facts must be asserted to demonstrate that, if proved, the law arguably provides the relief sought.
In Riemann & Riemann and Ors (No. 3) [2017] FamCA 911 at [37], McClelland J (as he then was) cited with approval the judgment of Le Miere J in Hancock Family Memorial Foundation Ltd v Fieldhouse (No 3) [2010] WASC 223 where Le Miere J observed as follows:
27.The applicant on a joinder application must show that there is an arguable case sufficient to resist the entry of summary judgment by the parties sought to be joined: Universal Music Australia Pty Ltd v Cooper [2004] FCA 78 [6] (Tamberlin J). The test is that stated by Barwick CJ at 128 - 129 in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125: Universal Music Australia Pty Ltd v Cooper [7] (Tamberlin J); Review Australia Pty Ltd v Red Berry Enterprises Pty Ltd [2003] FCA 1009 [5] (Heerey J). It would be futile to order that a person be joined as a defendant if the material before the court disclosed that if the person, having been joined as a defendant, applied for summary judgment the application would succeed.
It is a fundamental to a joinder application that a party sought to be joined to the proceedings must have some awareness of the claim being asserted against them and more particularly, the orders that are sought.
DISCUSSION
These proceedings are made more complicated by the fact that the wife is unrepresented as were each of the putative respondents.
The wife carries the onus of establishing that it is necessary for the relief that she seeks for the joinder application. The fundamental difficulty with the wife’s application is that whilst her affidavit at a prima facie level seems to articulate a claim, her current final relief contained in a Further Amended Initiating Application filed on 25 August 2023 seeks no orders against the putative respondents.
In circumstances where no relief is sought against the joinder parties, then their joinder to the proceedings is not necessary and accordingly, the wife’s application was dismissed.
I pause to note, however, that I have not determined the wife’s claim or the necessity or otherwise for joinder. In the event the wife articulates in proper form relief against any proposed joinder party, then she is at liberty to file another application for the Court to consider the issue of joinder.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 23 November 2023
SCHEDULE OF PARTIES
SYC 4879 of 2022 Respondents
Putative Fourth Respondent:
MS GALLAGHER