Diggins and ANZ Executors and Trustee Company Ltd - [2007] FMCAfam 676

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

That the application filed 20 February 2007 be dismissed.
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

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.
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.
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.
The initiating application was filed, and the application commenced, on 20 February 2007. In my view this is the clear effect of rule 2.05(2) Federal Magistrates Court Rules 2001. In Johnston v Vintage Developments Pty Limited [2006] FCAFC 171 at [16] the court said:
“The word ‘filed’ is the word traditionally used to describe the act or process of placing documents in the records of a Court or registry: Purden Pty Limited v Registrar in Bankruptcy (1982) 64 FLR 306 at 39-310; 43 ALR 512 at 515 per Bowen CJ, Fisher and Lockhart JJ; Hong v Minister for Immigration and Multicultural Affairs (1998) 82 FCR 468 at 471 C-D, 473 B per Burchett, Lehane and Finkelstein JJ. In this aspect the act of filing a document is the act of the court, as opposed to the act of lodging it, which is the act of a party.”
In the present case the documents were lodged by the applicant’s solicitor on 16 February 2007, but were not filed until 20 February 2007.
Counsel for the applicant wife referred to cases in which a court had amended initiating process to avoid injustice caused by the fault of a registry officer. No such fault is referred to or asserted in the present case. However, each of those cases predates the decision of the High Court in Emanuele v Australian Securities Commission (1997) 188 CLR 114, which dealt with the circumstances in which a court can make an order nunc pro tunc. Their Honours there distinguished between a statutory provision conferring jurisdiction, which requires strict compliance (as in David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265) and one which is procedural such that non-compliance amounts to a mere defect or irregularity in the exercise in the courts jurisdiction otherwise validly invoked. It is only in the latter cases that orders can be made nunc pro tunc.
Because the institution of proceedings during the joint lives of the parties to the marriage is a matter essential to the court having jurisdiction to deal with property settlement proceedings, in my view the court does not have power to make an order nunc pro tunc.
Even if the court did enjoy such power, the proceedings in the present case were actually filed after the death of the respondent. There is no provision, to which counsel were able to refer me, that provides that proceedings commenced at a certain time of day have effect for the whole of that day. There is nothing in the Acts InterpretationAct1901 to that effect. That leads to the rather unfortunate result that unless proceedings are commenced in the court prior to the moment of the other party’s death, the court does not have jurisdiction to entertain the proceedings, even if such proceedings are filed later that same day.
I therefore conclude that:
a)The proceedings were filed by the applicant on 20 February 2007;
b)The court does not have power to make an order deeming the proceedings to have been commenced on 16 February 2007;
c)Even if the court had such power the proceedings were in fact commenced after the death of the respondent;
d)It follows, therefore, that the court does not have jurisdiction, and the proceedings must be dismissed.
Each party made submissions as to costs.
It is arguable whether s.117 of the Act applies, because I have found that the applicant did not bring valid proceedings “under this Act”.
At general law, the court has a discretion as to the award of costs. In the present case the solicitor for the executors of the respondent’s estate wrote to the solicitors for the applicant on 9 August 2007, two days after being served with the initiating application and supporting documents, and invited the applicant to withdraw her proceedings (exhibit PWG4 to the affidavit of Paul William Gleeson filed 12 August 2007). The applicant’s solicitor, and the applicant herself, did not know of the time of the respondent’s death until the matter came before the court on 13 August 2007. It was argued, in those circumstances, that the applicant should not have to pay the costs of the executors prior to that day.
However, in my view the proceedings should have been discontinued on receipt of the letter from the executor’s solicitor. I have concluded that the proceedings were not filed until 20 February 2007, and that such defect can not be saved. Had the proceedings been discontinued by the applicant when the fact of late filing was drawn to their attention, the executors would not have incurred any significant legal costs.
In the circumstances, I order the applicant wife to pay the costs of the estate of the respondent as and from 10 August 2007 to be taxed, unless otherwise agreed. It will be a matter for the taxing officer to determine whether it was appropriate for the respondent to engage counsel to appear before the court on 13 August 2007. I certify that it was appropriate to brief counsel for the hearing of the application on 22 August 2007.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Wilson FM

Associate: Lynnette Chin

Date: 7 September 2007