DEAN and DEAN

[2017] FCWAM 1

JURISDICTION :

MAGISTRATES COURT OF WESTERN AUSTRALIA -

150 TERRACE ROAD

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: DEAN and DEAN [2017] FCWAM 1

CORAM: SUTHERLAND M

HEARD: 13 DECEMBER 2016

DELIVERED : 4 JANUARY 2017

FILE NO/S: PTW 5978 of 2013

BETWEEN: MS DEAN

Applicant

AND

MR DEAN
First Respondent

AND

G DEAN
Second Respondent

AND

P DEAN
Third Respondent

AND

CDM PTY LTD
Fourth Respondent

Catchwords:

PRACTICE AND PROCEDURE - Application to proceed undefended - Application for extension of time to file documents, notwithstanding self executing order has already sprung

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant: Self Represented Litigant

First Respondent : Mr Rodda

Second Respondent : Mr Wilson SC

Third Respondent : Mr Wilson SC

Fourth Respondent : Mr Wilson SC

Solicitors:

Applicant: Self Represented Litigant

First Respondent : O'Sullivan Davies

Second Respondent : Holden Barlow

Third Respondent : Holden Barlow

Fourth Respondent : Holden Barlow

Case(s) referred to in judgment(s):

M & D [2014] FCWA 50

MTQ Holdings Pty Ltd v Lynch & Ors [2007] WASC 49

Tate v Tate (2000) FLC 93-047

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL
JUDGMENT - PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN

CHANGED

INTRODUCTION

1On 25 October 2013, [Ms Dean] commenced financial proceedings against her former husband [Mr Dean]. On 11 June 2014, Ms Dean amended her application, including by naming as additional respondents to the proceedings, Mr Dean’s parents, [G & P Dean], together with their company, [CDM Pty Ltd] (together referred to as the “second, third and fourth respondents”). Since this time, the second, third and fourth respondents have sought, unsuccessfully, that Ms Dean specify with precision the nature of her claim against them.

2The applications currently before the court are:

a)The Form 2 Application by the second, third and fourth respondents filed 17 November 2016 in summary, that:

i)Pursuant to Ms Dean’s non-compliance with a self-executing order made by his Honour Justice Walters on 5 July 2016 (“the July 2016 orders”), Ms Dean’s application in so far as it relates to the second, third and fourth respondents be deemed dismissed effective as of 10 August 2016;

ii)Alternatively, as a result of Ms Dean’s ongoing non-compliance with other paragraphs of the July 2016 orders, her application in so far as it relates to the second, third and fourth respondents be dismissed.

b)The Form 2 Application by Mr Dean filed 17 November 2016 that he have leave to proceed on an undefended basis and that Ms Dean be prohibited from filing any further court documents or participating in the proceedings in any way unless with the leave of the court.

WHAT IS THE BACKGROUND TO THESE PROCEEDINGS?

3From the late 1970s or early 1980s, G & P Dean operated a farming business known as [Farm A] on farm land owned by their company, CDM Pty Ltd (“the Farm Land”). They lived in the main homestead on the farm. Mr Dean and Ms Dean commenced cohabitation in about 1989 and were married [in] 1990. After their marriage, Mr Dean and Ms Dean moved into a cottage on the farm and commenced full-time work on the farm.

4In late 1997, Mr Dean established a family trust known as [Farm A Trust], the trustee of which was [Farm A Pty Ltd]. Mr Dean was the appointor of the trust. Subsequently, Mr Dean (through his trust) and his two brothers [P] and [J] (through their respective entities) became partners with G & P Dean in the partnership of [the Dean Partnership]. Thereafter the partnership operated a number of business enterprises, including:

a)A [farming] business known as Farm A, on part of the Farm Land. This business was operated by Mr Dean.

b)A separate [farming] business known as [Farm B], on a separate part of the Farm Land. This business was operated by P.

c)A separate business known as [Farm C]. This business was operated by J.

5In or about 1998, G & P Dean moved out of the main homestead on Farm A and Mr Dean and Ms Dean then moved in. Mr Dean and Ms Dean continued to live and work on the property until November 2012, when they separated on a final basis and Ms Dean left the property.

6Ms Dean commenced the financial proceedings on 25 October 2013. In support of her application, Ms Dean filed a lengthy and detailed affidavit setting out her understanding of the parties’ financial position. At the time, she was represented by [Law Firm A]. Ms Dean did not specify the final orders that she sought against Mr Dean, instead proposing that she particularise the final orders she sought within 42 days of receiving full and frank disclosure from Mr Dean. At the first return date on 10 December 2013, the court made an order that Ms Dean and Mr Dean file and serve any amended application or response setting out and particularising the final orders sought; and in the event any third party was to be joined, then they also be given notice. Ms Dean failed to file an amended application within the timeframe. The court granted extensions of time for her to file an amended application on 12 March 2014 and again on 5 May 2014.

7On 11 June 2014, Ms Dean filed an amended Form 1 Application, naming the second, third and fourth respondents as parties. At the time, Ms Dean was represented by [Law Firm B]. In summary she sought orders that Mr Dean transferred to her a proportion of the Farm Land and in the event he did not have an interest in the Farm Land, then the second, third and fourth respondents transfer such proportion of the Farm Land or pay her such amount as the court deemed appropriate. Ms Dean did not otherwise specify the orders sought by her against the second, third and fourth respondents. She also did not file and serve any other document setting out the legal and factual basis for her claim against the second, third and fourth respondents.

8On 9 September 2014, the second, third and fourth respondents filed a Form 1A Response, seeking that Ms Dean’s application in so far as it related to them be dismissed. They also sought a number of interim orders, in effect seeking that Ms Dean be required to particularise her claim against them. The matter was dealt with by her Honour Justice Crisford on 18 November 2014. Her Honour made an order that within 21 days, Ms Dean file and serve the following documents:

a)A Minute specifying with particularity the orders sought by Ms Dean against the second, third and fourth respondents, and identify the relevant provisions under the Family Law Act 1975 (Cth) (“the Act”) relied upon by her in support of the orders

she sought;

b)An affidavit setting out the evidence upon which Ms Dean asserted the orders sought by her against the second, third and fourth respondents be made; and

c)A document (in the nature of a statement of claim) setting out the legal and factual basis under which Ms Dean relied to seek orders in the terms of her amended Form 1 Application.

9Ms Dean filed and served a statement of claim and a minute of orders sought on 9 December 2014. Ms Dean also filed a lengthy and detailed affidavit at the same time, which not only set out her evidence in relation to her claim against the second, third and fourth respondents, but also set out detailed evidence in relation to her claim against Mr Dean.1 At the time, Ms Dean continued to be represented by Law Firm B. In her statement of claim, Ms Dean sought orders that the parties put into effect and implement an alleged agreement recorded in a Memorandum of Understanding dated 12 November 2010 and a supplementary document dated 30 November 2010; and alternatively, that the second, third and fourth respondents do transfer to Mr Dean and Ms Dean 10,500 acres of the Farm Land or such sum as represented the value of that land. In my view, on their face, the documents did not appear to record any agreement and instead set out various options and/or negotiating positions, including for separating out from the partnership, the three businesses operated by Mr Dean and his two brothers.2

10Throughout much of 2015, the parties were engaged in various disputes concerning disclosure and the issuing of subpoenas to produce documents. During this time, Ms Dean was represented by [Law Firm C] and then by [Law Firm D]. On 30 September 2015, her Honour Justice Crisford made an order by consent that within 30 days Ms Dean file and serve an amended statement of claim (“the September 2015 order”). Ms Dean did not comply with the September 2015 order and in November 2015, Law Firm D ceased acting on Ms Dean’s behalf.

11On 7 January 2016, the second, third and fourth respondents filed a Form 2 Application seeking that Ms Dean’s application against them be dismissed as she had failed to comply with the September 2015 order. Her Honour Justice Crisford dealt with the application on 11 January 2016. Ms Dean attended the hearing in person and was unrepresented. Her Honour made an order that the time for Ms Dean to comply with the September 2015 order be extended to the close of business on 11 March 2016. The transcript of the proceedings revealed that during the hearing, counsel for the second, third and fourth respondents sought a “guillotine” or self-executing order in relation to the filing of the amended statement of claim.3 Her Honour refused counsel’s application, however made the following observation to Ms Dean:

I have considerable sympathy for their position. I’m not going to make a self-executing order. What I’m going to do is to ensure that the adjourned hearing is very close to the time limit that I intend to give and I would have thought given the history of the matter that this really is the last opportunity for you to do that. Otherwise, the second, third and fourth respondents will not be a party to these proceedings and you’re going to have considerable difficulties in running the case that you’re presently trying to put to the court. So I’m being urged to make an order that cuts you out immediately. I’m giving you one last opportunity.4

12On 11 March 2016, Ms Dean filed an amended statement of claim. At this time, Ms Dean was represented by [Law Firm E]. In her amended statement of claim, Ms Dean abandoned her claims that the parties give effect to the alleged agreement recorded in the Memorandum of Understanding and supplementary document; or alternatively, that the second, third and fourth respondents do transfer to Mr Dean and Ms Dean 10,500 acres of the Farm Land or such sum as represented the value of that land. Instead, Ms Dean claimed, amongst other things, that the parties and others were engaged in a joint endeavour and sought that an account be taken of the value of her and Mr Dean’s contributions to the joint endeavour (“the Accounted Value”).

13On 18 March 2016, his Honour Justice Walters made an order that by 18 April 2016 the second, third and fourth respondents file and serve a document in the nature of a defence to Ms Dean’s amended statement of claim, together with a supporting affidavit. The second, third and fourth respondents did not file their defence within time, but did so on 1 June 2016.

14The matter came before his Honour Justice Walters again on 5 July 2016. At this time Ms Dean was represented by [Law Firm F]. The July 2016 orders made by his Honour were as follows:

1.Within 35 days from the date of these orders, the applicant wife must file and serve Particulars of her Statement of Claim in relation to the second, third and fourth respondents particularising the amount of the "Accounted Value" claimed by her in paragraph 8 of her Amended Statement of Claim, and also particularise:

(a) against whom the claim is made;

(b) the value or amount of the "Accounted Value"; and

(c) how the "Accounted Value" is calculated.

2.In the event the applicant wife fails to comply with paragraph 1 above, the applicant wife's claim to the extent it relates to the second, third and fourth respondents be dismissed and the applicant wife pay the second, third and fourth respondents' costs in these proceedings.

3.The second, third and fourth respondents be given leave to:

(a)file and serve their defence and affidavit in support out of time; and

(b)the time frame for the filing and service of the said defence and affidavit pursuant to paragraph 1 of the Minute of Consent Orders annexed to the orders pronounced 27 May 2016 be extended to 1 June 2016.

4.The Form 2 application in a case filed by the second, third and fourth respondents on 1 July 2016 otherwise be dismissed.

Trial directions

5.These proceedings be included in the Judges' Defended List with an estimated hearing time of 7 days.

6.The parties and, if represented, their lawyers attend a Readiness Hearing on a date to be allocated by the Caseflow Manager. (A copy of the Readiness Hearing Information Sheet is attached)

7.By not later than 42 days prior to the date fixed for the Readiness Hearing, each must file and serve a written undertaking as to disclosure in the form set out in the Family Law Rules 2004 ("the Rules"), attaching each party's list of disclosed documents.

8.Subject to paragraphs 1 and 2 of these orders, by not later than 42 days prior to the date fixed for the Readiness Hearing, each party must file and serve a Minute of Proposed Orders Sought setting out the orders each party seeks on a final basis.

9.Unless already provided by each party, by not later than close of Registry business on 31 August 2016, each party must make a genuine offer to settle the financial aspects of the case in writing, such offer to expressly state that it is made under Division 10.1.2 of the Rules.

10.By not later than 35 days prior to the date fixed for the Readiness Hearing, the applicant wife must file and serve:

(a) an affidavit setting out her evidence for trial;

(b) an affidavit of each witness;

(c)a list containing the names of any proposed witness who has refused to provide an affidavit; and

(d) an up to date Form 13 financial statement.

11.By not later than 21 days prior to the date fixed for the Readiness Hearing or 14 days after service on their respective solicitors of sealed copies of the documents referred to in the preceding paragraph (whichever is the later), the respondent husband and the second, third and fourth respondents respectively must file and serve:

(a) an affidavit setting out their respective evidence for trial;

(b) an affidavit of each witness;

(c)a list containing the names of any proposed witness who has refused to provide an affidavit; and

(d) an up to date Form 13 financial statement.

12.All affidavits to be filed pursuant to these orders must be –

(a) confined to facts about the issues in dispute; and

(b) confined to admissible evidence.

13.Each party have leave to issue subpoenas to produce documents returnable before the presiding Judge in the usual course.

14.By not later than 28 days prior to the first hearing day of the trial, and subject to any subsequent costs order made by the Court, waiver or exemption, all parties must pay equally the setting down fee and the hearing fee for a 7 day trial – and in the event the actual hearing time exceeds the estimated hearing time of 7 days, then prior to the commencement of the additional hearing day(s), all parties must pay equally the additional hearing fee and provide a copy of the receipt to the presiding Judicial Officer.

15.For the purposes of paragraph 14 above only, the second, third and fourth respondents shall be deemed to be a single party.

16.The Form 2 applications in a case filed by the second, third and fourth respondents on 22 January 2015 and 7 January 2016 be adjourned to trial.

17.The parties' costs otherwise be reserved.

15On 8 August 2016, Ms Dean filed her particulars of statement of claim (“Particulars”). At the time, Ms Dean continued to be represented by Law Firm F. I accept the submission of counsel for the second, third and fourth respondents that the Particulars did not comply with paragraph 1 of the July 2016 orders in that:

a)It did not particularise the value or amount of the “Accounted Value” of the alleged contributions set out at paragraphs 9 and 10 of the Particulars; and

b)Notwithstanding references in the Particulars to “methods of calculation”, it did not in fact particularise how the “Accounted Value” was calculated for most items referred to. In my view, a number of the purported “methods of calculation” for the various contributions set out in the Particulars did no more than make ambit or global claims by reference to the total current value of various assets, (for example the current values of real estate, buildings, plant and equipment and ignoring the liabilities in relation thereto).

16At no time after 8 August 2016 did Ms Dean or her solicitors seek leave to file amended Particulars, to remedy the defects in the document. On 31 August 2016 the solicitors for the second, third and fourth respondents wrote to Law Firm F putting Ms Dean on notice that they did not concede that Ms Dean had complied with paragraph 1 of the July 2016 orders. Ms Dean did not respond to the letter, either personally or through her solicitors.

17On 11 October 2016, the second, third and fourth respondents filed a minute of proposed orders sought. In effect, they sought that pursuant to paragraph 2 of the July 2016 orders, Ms Dean’s application in so far as it related to them be deemed to have been dismissed. On 12 October 2016, Mr Dean also filed a minute of final orders sought, which in effect proposed a 60/40 division in Ms Dean’s favour of their net asset pool.

18On 14 October 2016, Ms Dean filed a notice of address for service on her own behalf. She has been self-represented since this time. Thereafter, Ms Dean filed her trial affidavit and financial statement purportedly in compliance with the July 2016 orders. She did not file and serve an undertaking as to disclosure or a minute of final orders sought.

19Ms Dean’s filed financial statement was incomplete. Ms Dean’s trial affidavit was as follows5:

1.I [Ms Dean] is employed through my own company [Farm A PTY LTD] named [Farm A], it is documents in [Law Firm G] advice [Ms Dean] and [Mr Dean] own the [Farm A] trust which is the [Farm A] business, in the business it consist of 10,838 [farm animals] documents in the [Farm A] numbers for 2014-2015 value $4,491,450 Farmanco report 7^th may 2014, Plant and Machinery Jan 2014 value $3,430,000 farmanco report insurance from Elders client number [xxxxxxxx] 7^th may 2014, infracture list 2011 it’s the same each year, $2,497,000, 2016 [Farm A] [farm animals] sale 4^th October 2016 $387,2000 Not including the next lot of [farm animals] we sell after the October sale to November, [Mr Dean] is in Breach not disclosing the [farm animals] sales, Farmanco reports for 2015 and 2016 Harvest is just around the corner 2million plus. [Farm A] land 21,000 x $1,450 acrea is $30,450,000. Pellet tiser plant value 1.5 million, 4 shares in the [Apartment A] paid by share portfolio, 2008 to 2016 Account details, [G & P Dean], [Farm A P/L], [ABC Developments P/L], and [Company A P/L] = $393,000 20% in the 418 [Property A] 5million = 1million 20% [Company B] worth 8 million = $1.6 million, 2012 [Farm A] trust 2012 $803,236.58.

2.A letter from [Mr H] ANZ Agribusiness Manager Corporate WA, [Ms Dean] Guarantee and Indemnity dated 13/09/1999 Guaranteeing the borrowings of [Farm A PTY LTD] CAN [xxxxxxxxx] in own capacity and as trustee for the [Property A Trust]. [G & P Dean] retired.

3. Reference from people in my industry [Mr James], [Ms James], [Ms Poole]/[Mr Floyd], [Mr Walsh].

4.[Ms Dean] tax return estimate 2012.

5.map of [Farm A] and lot numbers and current and Historical company extract 12 pages.

6.Company trust [Farm A] cheque book still the same account number.

7.photo of the homestead before and after.

8.Ms Dean and [Ingrid] [Country Town B] [farm animals] show and advertising for [Farm A] 2012 filed days.

9.[Mr Doyle] letter formal family account.

10.[Mr G Dean] foreward to Mr Dean and [Ms Dean] principal of [Farm A].

20In my view, there are significant issues with Ms Dean’s trial affidavit, including that she simply failed to set out any evidence in relation to: (1) her claims against the second, third and fourth respondents; (2) contribution factors pursuant to s 79 of the Act; and (3) the various factors set out in s 75(2) of the Act. Ms Dean also purported to annex to her affidavit approximately 100 pages of documents that included, inter alia, excerpts from unidentified documents, newspaper articles, partial invoices, unidentified photographs, references from third parties and a school reference for Mr Dean’s and Ms Dean’s son. In my view, much of the affidavit is objectionable and likely to be the subject of a successful strike out application, if made.

21On 17 November 2016, Mr Dean and the second, third and fourth respondents filed their respective Form 2 Applications, the subject of these proceedings.

22The parties attended a Readiness Hearing before Registrar Forrest on 23 November 2016. The transcript of the hearing revealed that Mr Dean’s counsel raised with the Registrar his concerns about the state of Ms Dean’s evidence as contained in her trial affidavit. Ms Dean confirmed to the Registrar that aside from some disclosure documents that she was still pursuing, all of the evidence that she wished the trial judge to consider was contained in her trial affidavit.6 However, the transcript also revealed that the Registrar did not draw to Ms Dean’s attention the significant issues with her trial affidavit, or invite Ms Dean to consider making an application to rely at trial upon any of her earlier affidavits filed in the proceedings. The Registrar determined not to place the matter in the Callover for the allocation of a trial date in due course. Instead, she listed the Form 2 Applications for hearing on 13 December 2016.

23On 1 December 2016, Ms Dean filed an affidavit purportedly for the hearing on 13 December 2016. The affidavit was in the following terms:7

The Applicant in the Family court of Western Australian responding to the Minutes of Proposed orderds sought by the second, Third and Fourth respondent stamp 11 oct 2016. Paragraphs from 1-3 and paragraphs 1-2.

The Minutes of Final orders sought by the Husband. Dated 12 october 2016. Paragraphs 1- 10.

[Ms Dean] is disputing facts and Authenticity Documents, does not admit any of the facts contained in all documents filed.

24On 9 December 2016, Ms Dean filed a further affidavit, purportedly for the hearing on 13 December 2016. The affidavit was in the following terms:8

1.I [Ms Dean] am the Applicant in this proceedings my Husband [Mr Dean] is the First Respondent in this case.

A)Email from [Mr H] small business loan constructing plan.

B)Article [Ms Dean] [Farm A] and [Company W Marketing Manager Mr T].

C)Very interesting Email maybe [G Dean] would explain this email to my Adult children why this old Fool took it upon himself and has nothing to do with him. Two weeks before [G Dean] caused a huge Argument in [a hotel], after our daughter last day at [School A] [G Dean] Blames everyone and picks on females as he has no balls. Correct we all run our own business since 2010 Document in [Law Firm G] [Mr Dean] and [Ms Dean] own the [Farm A] Business. Ducumented in My affidavit sign By [Mr F] and 2^nd Affidavit done by [Ms V] in the family court of WA.

D)FARMANCO Report 2014 for [Farm A] Business [Mr Dean] and [Ms Dean]. 2014 Farm BUSINESS REVIEW, [Mr S] wrote it’s a rare occasion when all the start line up, well yes if the season and mother nature is kind to you, from 2008 [Ms Dean] and [Mr Dean] payed for house renovation and pellet tiser plus new machinery and vehicles and extra staff. In 2013 to 2014 $1,000,000 profit why didn’t [Mr Dean] put this information in his Affidavit. 2013 [Mr Dean] and [Ms Dean] made a profit $940,501. [Ms Dean] is still waiting on 2015 nad 2016 Farmanco Report, From Osullivan Davies as it is sent to po box [xx] [Country Town B]. [Mr Dean] is not following with forward Disclosure.

E)[Farm A Trust] Total Beneficiaries funds 2012 $803,236.58.

F)[Mr Dean] has purchase a house in [City A] again where is the disclosure.

G)[Mr Dean] Form 13 what is missing from his living standards and [Ms G] 50 yr old Girl friend or Partner or sexual partners living on my [Farm A] cheque account.

H)[Ms Dean] and [Mr Dean] [Farm A] Bank Statements arrange of dates and months, the disclosure is not up to date, Nick Rodda from O’Sullivan Davies and lawyers have not followed constitution of the WA family Law it is very unfair [Mr Dean] has full access to our joint Farm cheque account [Farm A].

2. I)[Mr Dean] variation of high living standard on visa card not putting it through his form 13 and the visa card is paid by [Ms Dean] and [Mr Dean] joint account [Farm A] cheque account.

J)There is 4 partners that own [Apartment A], we purchase the partment in 2008. The share portfolio which is 4x investment trusts, pays for the running cost of the partment and pay down the loan. November 2008 the apartment was brought for $2,411,00. 2 old ANZ bank statements to prove.

25Again, Ms Dean annexed a large bundle of documents to her affidavit, many of which appeared to bear no relationship to the matters raised by her in the affidavit.

26In my view, Ms Dean’s two December 2016 affidavits were chaotic, difficult to follow and appeared to have only limited relevance to the issues raised in the two Form 2 Applications. Although the state of Ms Dean’s trial affidavit and her two December 2016 affidavits raised concerns in my mind about Ms Dean’s capacity to conduct the proceedings, I observe that in the past three years, Ms Dean has instructed six separate firms of lawyers, none of whom raised any concerns with the court about Ms Dean’s capacity to conduct the proceedings. In addition, Ms Dean annexed to her 9 December 2016 affidavit a letter from [Dr D], her treating general medical practitioner, dated 30 November 2016. Whilst Dr D raised issues about Ms Dean suffering from a chest infection and low iron levels in 2016, she did not raise any issues in relation to Ms Dean’s capacity to conduct the proceedings.

27At the hearing on 13 December 2016, Ms Dean continued to represent herself. Again, Ms Dean’s submissions were chaotic, difficult to follow and appeared to have only limited relevance to the issues raised in the two Form 2 Applications. However, Ms Dean did confirm that she opposed the orders sought by Mr Dean and the second, third and fourth respondents. Accordingly, I proceeded on the basis that Ms Dean in effect sought:

a)An order that the court grant her a further extension of time in which to comply with paragraph 1 of the July 2016 orders, notwithstanding that it had already “sprung”;

b)An order that the court grant her a further extension of time in which to comply with paragraphs 7 and 8 of the July 2016 orders; and

c)That the two Form 2 Applications otherwise be dismissed.

SHOULD MS DEAN BE GRANTED AN EXTENSION OF TIME TO FILE AMENDED PARTICULARS NOTWITHSTANDING THE SELF-EXECUTING ORDER HAS ALREADY SPRUNG?

28I proceed on the basis that the applicable principles are as set out in the decision of her Honour Justice Crisford in M & D [2014] FCWA 50 at [24] – [26].

29I am satisfied that since late 2014, the second, third and fourth respondents have attempted to have Ms Dean particularise the legal and factual basis for her claim against them. After Ms Dean failed to comply with the September 2015 order, her Honour Justice Crisford declined to make a self-executing order against Ms Dean on 11 January 2016. However, her Honour made it clear to Ms Dean that she was being given one last opportunity to get her house in order. Ms Dean did not do so. Although Ms Dean filed an amended statement of claim in March 2016, the document still materially failed to particularise her claim against the second, third and fourth respondents. It was against this background that on 5 July 2016, his Honour Justice Walters made the self-executing order and additional orders for the filing of trial documents. Ms Dean had the benefit of legal representation for much of the proceedings, including in the preparation of her statement of claim, amended statement of claim and Particulars. The July 2016 orders in effect marked the end of the line for Ms Dean to particularise her claim against the second, third and fourth respondents, or proceed onto trial on the basis that her claim against them had been dismissed.

30Ms Dean’s reasons for non-compliance with the self-executing order were difficult to discern. However, during Ms Dean’s oral submissions, two main themes emerged. Firstly, Ms Dean maintained that she suffered from low iron levels that caused her to be tired and fatigued. The letter from Dr D confirmed that Ms Dean was treated for a chest infection in May 2016 and was diagnosed with low iron levels in October 2016, for which she also received treatment. Dr D confirmed in her letter that “over the time these medical problems would have impacted negatively on her ability to prepare and present for any court proceedings”. However, there was no specific evidence (and Ms Dean did not assert) that she was unable to give instructions to her former solicitors during the relevant period in July and August 2016 due to ongoing health issues. Secondly, Ms Dean complained that she was unable to particularise her claim against the second, third and fourth respondents due to ongoing disclosure issues. In particular, she maintained that there had been non-compliance with the disclosure orders made by the court on 21 March 2016. However, the documents identified by Ms Dean as being outstanding appeared to have little if any relevance to her claim against the second, third and fourth respondents. Rather, they appeared to primarily relate to the Farm A farming business operated by Mr Dean and Mr Dean’s personal financial circumstances.9

31Ms Dean did not maintain and there was no evidence to suggest that the non-compliance with paragraph 1 of the July 2016 was caused by Ms Dean’s former solicitors. Even if the default was caused by Ms Dean’s solicitors, then this is not of itself sufficient to enable Ms Dean to avoid the consequences of the self-executing order.10 At the end of the day, I am not satisfied that Ms Dean provided a proper or sufficient explanation for her failure to comply with paragraph 1 of the July 2016 orders.

32If I do not extend the time for compliance with the filing of the Particulars, then Ms Dean will be unable to pursue her claim against the second, third and fourth respondents. Given Ms Dean’s ongoing failure to particularise the legal and factual basis for her claim against them, it is difficult to assess the merits of her claim. Even if I were satisfied that Ms Dean had a meritorious case, it does not insulate her from her failure to comply with paragraph 1 of the July 2016 orders.11 If I extend the time for compliance with the filing of the Particulars, then the second, third and fourth respondents’ position will be largely unchanged from that when the self-executing order was made on 5 July 2016. They will continue to be in a position of not knowing the proper legal and factual basis of Ms Dean’s claim against them.

33In conclusion, I am not satisfied in the exercise of my discretion that Ms Dean should be granted a further extension of time to file amended Particulars, particularly having regard to the lack of any proper or sufficient explanation for her failure in this regard. I am satisfied that Ms Dean should bear the consequences of her failure to comply with paragraph 1 of the July 2016 orders.

34Although the second, third and fourth respondents sought a further order that pursuant to paragraph 2 of the July 2016 orders, Ms Dean pay their costs “on an indemnity basis”, I am not satisfied it is appropriate to do so. Paragraph 2 of the July 2016 orders provided that Ms Dean pay “the second, third and fourth respondents’ costs in these proceedings”. The second, third and fourth respondents did not appeal this order. As the particular order did not specify the method for the calculation of the costs, pursuant to Rule 19.18 of the Family Law Rules (“the Rules”), the costs are to be assessed on a party / party basis.

SHOULD MR DEAN BE GRANTED LEAVE TO PROCEED UNDEFENDED?

35I proceed on the basis that the relevant principles are as set out in Tate v Tate (2000) FLC 93-047 at [95] – [108].

36Mr Dean maintained that having regard to: (1) the state of Ms Dean’s trial affidavit and financial statement; and (2) her failure to file and serve an undertaking as to disclosure and minute; the court should make orders to enable him to proceed on an undefended basis. However, I am not satisfied that it is appropriate to do so and intend to dismiss Mr Dean’s application for the following reasons:

a)The trial directions as contained in the July 2016 orders were intended to enable the parties to sensibly prepare for trial (including by encouraging full and frank disclosure, the identification of the matters genuinely in dispute and the expeditious marshalling and presentation of the relevant evidence). Nevertheless, the principles of case management must remain subject to and never prevail over the attainment of justice overall.12

b)Although Ms Dean failed to file documents in accordance with the trial directions as contained in the July 2016 orders, and her trial affidavit and financial statement were clearly defective, I am not satisfied that Ms Dean did so wilfully or deliberately. Ms Dean was self-represented from October 2016, including when: (1) she prepared and filed her trial affidavit and financial statement; and (2) when she attended the Readiness Hearing. In my view, it appears that Ms Dean has struggled significantly to prepare her matter for trial in the absence of ongoing legal advice and assistance. In such circumstances, I am not satisfied that it is appropriate that Ms Dean should be penalised for not having the benefit of ongoing legal advice and assistance in preparing for trial. This is particularly in circumstances where: (1) Ms Dean has, earlier in the proceedings and with the benefit of legal assistance, filed lengthy and detailed affidavits setting out her evidence in relation to the financial proceedings vis a vis Mr Dean; and (2) it is open to Ms Dean to seek that the trial judge or magistrate take these affidavits into account for the purposes of the trial.

c)There is some (as yet untested) evidence to suggest that Mr Dean did not come before the court with entirely clean hands himself.

In particular, Ms Dean maintained that Mr Dean has continually failed to comply with orders to give full and proper disclosure of relevant financial documents, including but not limited to most recently: (1) up-to-date statements for the Farm A farm cheque account; (2) documents evidencing the purchase of a new property in Perth; and (3) the Farmanco budgets.

SHOULD MS DEAN BE GRANTED AN EXTENSION OF TIME TO FILE HER UNDERTAKING AS TO DISCLOSURE AND HER MINUTE OF FINAL ORDERS SOUGHT?

37Having regard to my earlier findings, I am satisfied that Ms Dean should be granted a further extension of time to file her undertaking as to disclosure and her minute of final orders sought.

PROPOSED ORDERS:

38I intend to refer the matter back to the managing judge to make further orders, including for the inclusion of the matter in the next available Callover, if appropriate.

39I intend to make the following orders:

1.Pursuant to paragraph 1(b) of the orders made on 5 July 2016, the applicant’s application insofar as it relates to the second, third and fourth respondents be deemed dismissed, effective as of

10 August 2016.

2.The time for the applicant to comply with paragraphs 7 and 8 of the orders made on 5 July 2016 be extended to the close of Registry on 16 February 2017.

3.The Form 2 Application filed by the first respondent on

17 November 2016, together with the Form 2 Application filed by the second, third and fourth respondents on 17 November 2016, otherwise be dismissed.

4.The proceedings otherwise be adjourned for monitoring before His Honour Justice Walters on 23 February 2017 at 10am.

I certify that the preceding [39] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Secretary

4 January 2017

______________________________________

1 It appears that Ms Dean swore and filed two versions of the same affidavit – on 8 December 2014 and 9 January 2015.
2 Whilst Mr Dean and the second, third and fourth respondents agreed that the two documents were prepared for the purposes of facilitating discussions between G & P Dean and their three sons, all denied that any agreement was reached in the terms of any of the options raised in the documents, or at all.
3 Refer to page 10, lines 29 – 32 of the transcript dated 11 January 2016.
4 Refer to page 10, line 34; and page 11, lines 1 – 12 of the transcript dated 11 January 2016.
5 Spelling and grammatical mistakes included as in the original.
6 Refer to pages 8 and 9 of the transcript dated 23 November 2016.
7 Spelling and grammatical mistakes included as in the original.
8 Spelling and grammatical mistakes included as in the original.
9 For example, Ms Dean referred to ongoing disclosure issues in relation to Farmanco financial reports in relation to the Farm A farming business, the statements for the Farm A farming business ANZ Bank account, Mr Dean’s personal expenses being met from the Farm A cheque account and Mr Dean’s credit card statements.
10 MTQ Holdings Pty Ltd v Lynch & Ors [2007] WASC 49 at [52].
11 MTQ Holdings Pty Ltd v Lynch & Ors at [56].
12 Tate v Tate at [99].