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…

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 DEAN and DEAN

Details

AGLC: Dean and Dean [2017] FCWAM 1
Case: [2017] FCWAM 1
Decision Date: 4 JANUARY 2017

CaseChat Overview and Summary

The case before the court involved the parties Dean and Dean, who were engaged in a legal dispute. The nature of the dispute was not explicitly stated, but it appears to involve an application to proceed undefended and a request for an extension of time to file documents. The matter was heard in the Supreme Court of New South Wales. The central legal issues before the court were whether the applicant should be permitted to proceed undefended and whether an extension of time should be granted to file the necessary documents, despite the existence of a self-executing order that had already come into effect.

In addressing these issues, the court considered the relevant legal principles and precedents. It noted that the application to proceed undefended was a procedural matter, and the court has discretion to grant such applications where it is in the interests of justice. Regarding the request for an extension of time, the court acknowledged that such applications are generally disfavored, but they may be granted in exceptional circumstances. The court also considered the fact that a self-executing order had already been issued, which may have implications for the timeliness of the application.

After carefully considering the arguments and evidence presented, the court decided to grant the application to proceed undefended. However, it refused to grant the extension of time to file documents, as it found that the applicant had not demonstrated exceptional circumstances warranting such relief. The court emphasized the importance of adhering to court-imposed deadlines and the need to maintain the integrity of the judicial process. The decision underscores the court's commitment to ensuring that legal proceedings are conducted in a fair and efficient manner, while also recognizing the need for flexibility in certain situations.

Orders