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Dempsy & Dempsy and Ors

Dempsy & Dempsy and Ors

Case [2008] FamCA 1065 4 December 2008

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FAMILY COURT OF AUSTRALIA

DEMPSY & DEMPSY AND ORS

[2008] FamCA 1065

FAMILY LAW – PROPERTY – Application for Summary Dismissal – applicable principles – pleadings and affidavit disclose cause of action – cause of action not “doomed to fail” – jurisdiction to make orders for constructive trust – original and accrued jurisdiction

Family Law Act 1975 (Cth) ss 106B, 117(2A)

Bain Pacific Associations & Ors v Kelly & Ors (2006) FLC 93-270
Baumgartner and Baumgartner (1987) 164 CLR 137
Bigg v Suzi (1998) FLC 92-799
Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251
Valceski & Valceski (2007) FLC 93-312

APPLICANT WIFE:

Ms Dempsy

RESPONDENT HUSBAND:

Mr Dempsy

2^nd & 3^rd RESPONDENTS:

Mr Herston
Mrs Herston

FILE NUMBER:

LEC

227

2007

DATE DELIVERED:

4 December 2008

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Murphy J

HEARING DATE:

28 November 2008

REPRESENTATION

SOLICITOR FOR THE

APPLICANT WIFE:

Mr Dulley, Solicitor

Morrison & Sawers

COUNSEL FOR THE

RESPONDENT HUSBAND:

Mr R Schonell

SOLICITOR FOR THE

RESPONDENT HUSBAND:

Christopher Hughes & Associates, Lismore

COUNSEL FOR THE

2^ND& 3^RD RESPONDENTS:

Mr N Jackson

SOLICITOR FOR THE

2^ND& 3^RD RESPONDENTS:

Trenches McKenzie Cox

Lismore

Orders

The Application in a Case filed by the 2^nd and 3^rd Respondents on 1 May 2008 be dismissed.
Leave is granted for F Pty Ltd to intervene in the proceedings.
F Pty Ltd file and serve a Statement of Claim, in respect of any action alleged by it against any of the parties to these proceedings, by 30 January 2009.
The 2^nd and 3^rd Respondents and the Wife file and serve a Defence to any such claim within 28 days thereafter.

IT IS FURTHER ORDERED THAT

The 2^nd and 3^rd Respondents file and serve any further written submissions with respect to costs within 7 days after receipt of the Reasons for Judgment reserved today.
The Husband file and serve any written submissions in reply thereto within a further 7 days thereafter.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: LEC227 of 2007

MS DEMPSY

Applicant Wife

And

MR DEMPSY

Respondent Husband

And

MRS AND MR HERSTON

Second and Third Respondents (Wife’s parents)

REASONS FOR JUDGMENT

The husband and wife are involved in contested proceedings for settlement of property. The parents of the wife have been joined as second and third respondents to those proceedings.
Directions were previously made for the parties to file pleadings. On 6 May 2008 the husband filed a statement of claim. Defences by the wife and the second and third respondents have subsequently been filed.
An Application in a Case filed on 1 May 2008 by the second and third respondents seeks an order that the claim by the husband as against them be summarily dismissed. In the…

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 Dempsy & Dempsy and Ors

Details

AGLC: Dempsy & Dempsy and Ors [2008] FamCA 1065
Case: [2008] FamCA 1065
Decision Date: 4 December 2008

CaseChat Overview and Summary

The proceedings involved the parties Dempsy & Dempsy and Ors, with Murphy J presiding. The core of the dispute, as indicated by the orders, concerned an application filed by the second and third respondents which was ultimately dismissed. The court also addressed the intervention of F Pty Ltd and the subsequent procedural steps for filing claims and defences.

The primary legal issues before the court were whether to grant leave for F Pty Ltd to intervene in the proceedings and, consequently, to establish the procedural framework for any claims F Pty Ltd might wish to pursue against the existing parties. The court was also required to determine the appropriate timeline for the filing of pleadings, including a Statement of Claim by F Pty Ltd and a Defence by the second and third respondents and the Wife. Finally, the court needed to manage the submissions regarding costs.

Murphy J's reasoning, as evidenced by the orders, involved granting F Pty Ltd leave to intervene, thereby acknowledging its legitimate interest in the proceedings. The court then set a clear timetable for the filing of a Statement of Claim by F Pty Ltd and a Defence by the other parties, indicating a willingness to allow the substantive claims to be ventilated. The court also established a process for the parties to make submissions on the issue of costs, demonstrating a comprehensive approach to managing the litigation. The application by the second and third respondents was dismissed, suggesting it was either premature or lacked merit in light of the court's decision to allow F Pty Ltd to proceed with its potential claims.

Orders

Orders of the court

The Application in a Case filed by the 2nd and 3rd Respondents on 1 May 2008 be dismissed.

Leave is granted for F Pty Ltd to intervene in the proceedings.

F Pty Ltd file and serve a Statement of Claim, in respect of any action alleged by it against any of the parties to these proceedings, by 30 January 2009.

The 2nd and 3rd Respondents and the Wife file and serve a Defence to any such claim within 28 days thereafter.

IT IS FURTHER ORDERED THAT

The 2nd and 3rd Respondents file and serve any further written submissions with respect to costs within 7 days after receipt of the Reasons for Judgment reserved today.

The Husband file and serve any written submissions in reply thereto within a further 7 days thereafter.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Dempsy & Dempsy and Ors [2008] FamCA 1065

Most Recent Citation

Kingsley & Kendle [2010] FamCA 598

Cases citing this decision · 2 of 2 shown

Downard and Downard & Anor
[2014] FamCA 1122 Para 2

…ty does not change the status of the proceedings from that of a “ matrimonial cause ”. See also the decision of Murphy J in Dempsy & Dempsy & Ors [2008] FamCA 1065 at paragraph 30 and his Honour’s reference to the decision of Brereton J in Valceski v Valceski [2007] NSWSC 440; (2007) FLC 93-312.…
Kingsley & Kendle & Ors
[2010] FamCA 598 Para 6

…In Dempsy and Dempsy and Others [2008] FamCA 1065, Murphy J considered property proceedings between the husband and wife, to which the wife’s parents had been joined as the second and third respondents. It was the application of the second and third respondents that the claim made against them be summarily dismissed…

View all 2 citing cases →

Cases cited in this decision · 12 of 12 shown

Coe v the Commonwealth of Australia
[2001] NSWCA 36 Para 25

…1.] 3. An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant termination. [ Coe v The Commonwealth (1979) 24 ALR 118 ; 53 ALJR 403; Wickstead v Browne (1992) 30 NSWLR at 5-7.] Even a weak case is entitled to the time of a court. Experience teaches that the…
Lindon v Commonwealth of Australia
[1996] HCATrans 165 Para 25

…As each of those cases makes clear, the central principles are those clearly identified by Kirby J in Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251 at 255 and 256, cited in Bigg v Suzi at 84,974 and 84,975:- “The approach to be taken by the court to the Commonwealth's application for summary relief is…
Munnings v Australian Government Solicitor
[1994] HCA 12 Para 25

…s clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action [ Munnings v Australian Government Solicitor (1994) 118 ALR 385 at 388 ; 68 ALJR 196 at 171 ff, per Dawson J] or in advancing a claim that is clearly frivolous or vexatious; [ Dey v Victorian Railways Commissioners…
Munnings v Australian Government Solicitor
[1994] HCA 3 Para 25

…opponent's documents, that the opponent lacks a reasonable cause of action [ Munnings v Australian Government Solicitor (1994) 118 ALR 385 at 388 ; 68 ALJR 196 at 171 ff, per Dawson J] or in advancing a claim that is clearly frivolous or vexatious; [ Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 9…
Wickstead v Browne [No 2]
[1993] NSWCA 289 Para 25

…and such that it is unlikely to succeed is not, alone, sufficient to warrant termination. [ Coe v The Commonwealth (1979) 24 ALR 118 ; 53 ALJR 403; Wickstead v Browne (1992) 30 NSWLR at 5-7.] Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and…
Baumgartner v Baumgartner
[1987] HCA 59 Para 36

…stand any aspect of the pleading to reveal a claim in constructive trust based on common intention (as to which see, e.g. Baumgartner and Baumgartner (1987) 164 CLR 137).…
Northern Land Council v The Commonwealth
[1986] HCA 18 Para 25

…54 CLR 25 at 79 ; 43 ALR 587.] A question has arisen as to whether O 26, r 18 applies to part of a pleading. [ Northern Land Council v Commonwealth (1986) 161 CLR 1 at 8 ; 64 ALR 493.] However, it is unnecessary in this case to consider that question because the Commonwealth's attack was upon the entirety of Mr Lin…
Coe v Commonwealth of Australia
[1979] HCA 68 Para 25

…e court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant termination. [ Coe v The Commonwealth (1979) 24 ALR 118 ; 53 ALJR 403; Wickstead v Browne (1992) 30 NSWLR at 5-7.] Even a weak case is entitled to the time of a court. Experience teaches that the concentrati…
General Steel Industries Inc v Commissioner for Railways (NSW)
[1964] HCA 69 Para 25

…18 or in the inherent jurisdiction of the court, is rarely and sparingly provided; [General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128f; Dyson v Attorney-General [1911] 1 KB 410 at 418.] 2. To secure such relief, the party seeking it must show that it is clear, on the face of th…
Dey v Victorian Railways Commissioners
[1949] HCA 1 Para 25

…388 ; 68 ALJR 196 at 171 ff, per Dawson J] or in advancing a claim that is clearly frivolous or vexatious; [ Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91.] 3. An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant termination. […
Church of Scientology v Woodward
[1982] HCA 78 Para 25

…ion which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. [ Church of Scientology v Woodward (1980) 154 CLR 25 at 79 ; 43 ALR 587.] A question has arisen as to whether O 26, r 18 applies to part of a pleading. [ Northern Land Council v Commonwealth (1986) 161 CL…
[1911] 1 KB 410
[1911] 1 KB 410 Para 25

…rarely and sparingly provided; [General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 128f; Dyson v Attorney-General [1911] 1 KB 410 at 418.] 2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a…

Legislation cited in this decision · 1

Family Law Act 1975 (Cth)
106B, 117(2A) 3 mentions (from Para 21)