Diggins and ANZ Executors and Trustee Company Ltd

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DIGGINS & ANZ EXECUTORS AND TRUSTEE COMPANY LTD [2007] FMCAfam 676

FAMILY LAW – Property settlement proceedings – need to commence proceedings before death of one party to the marriage.

PRACTICE AND PROCEDURE – Property settlement proceedings commenced out of time – power of court to make order nunc pro tunc to enable proceedings to continue – application dismissed.

Family Law Act 1975, ss.79, 117
Federal Magistrates Court Rules 2001, rule 2.05(2)

Fisher & Fisher (1986) FLC 91-767
Johnston v Vintage Developments Pty Limited [2006] FCAFC 171
Emanuele v Australian Securities Commission (1997) 188 CLR 114
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265

Applicant: SAWITREE THIEL DIGGINS

Respondent: ANZ EXECUTORS AND TRUSTEE COMPANY LIMITED AS EXECUTOR OF THE ESTATE OF DALLAS BARRIE DIGGINS (DECEASED)

File number: BRC470 of 2007

Judgment of: Wilson FM

Hearing date: 22 August 2007

Date of last submission: 31 August 2007

Delivered at: Brisbane

Delivered on: 7 September 2007

REPRESENTATION

Counsel for the Applicant: Mr Morgan

Solicitors for the Applicant: Sharma Lawyers

Counsel for the Respondent: Mr Drysdale

Solicitors for the Respondent: Gleeson Lawyers

ORDERS

1. That the application filed 20 February 2007 be dismissed.

2. That the applicant wife pay the costs of the estate of the respondent as and from 10 August 2007 to be taxed, unless otherwise agreed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRC470 of 2007

SAWITREE THIEL DIGGINS

Applicant

And

ANZ EXECUTORS AND TRUSTEE COMPANY LIMITED AS EXECUTOR OF THE ESTATE OF DALLAS BARRIE DIGGINS (DECEASED)

Respondent

REASONS FOR JUDGMENT

1. Dallas Barrie Diggins died at 6.00am on 14 February 2007. At 4.29pm on that day the solicitor for the applicant wife lodged an initiating application, financial statement and affidavit seeking property settlement orders pursuant to s.79(1) Family Law Act 1975 (“the Act”).  The application was sealed by the registry on 20 February 2007.  The sole issue for the Court to determine is whether it has jurisdiction to entertain the application for property settlement orders.

2. It is clear that this court’s jurisdiction under the Act is that conferred by the statute. Proceedings must be commenced during the joint lives of the parties to the marriage, although, pursuant to s.79(8) such proceedings can continue after the death of one of the parties to the marriage. The court does not have jurisdiction to entertain property settlement proceedings if a party to the marriage dies before such proceedings have been commenced: Fisher & Fisher (1986) FLC 91-767.

3. Accordingly, in order to answer the question referred to at paragraph 1 hereof it is necessary to consider the three (3) subsidiary questions:

   a)On what date were proceedings filed by the applicant;

   b)If the proceedings were filed on 20 February 2007 does the Court have power to make an order that the proceedings be taken to have been commenced on 16 February 2007;

   c)If proceedings were commenced on 16 February 2007, but after the death of the respondent, are the proceedings validly commenced.

4. The initiating application…