Doisy & Wilmot-Doisy
[2009] FamCAFC 14
•6 February 2009
FAMILY COURT OF AUSTRALIA
DOISY & WILMOT-DOISY [2009] FamCAFC 14
FAMILY LAW - APPEAL – Practice and Procedure – trial Judge did not summarily dismiss a response – whether cause of action – application for leave to appeal dismissed
Family Law Act 1975, s 78, s 79, s 118(1)
Family Law Rules 2004, r 1.12, r 4.01(1)(a), r 6.05(b)(ii), r 9.01(2)(c), r 10.12, r 10.13, r 10.14, r 11.01
Federal Court of Australia Act 1976, s 31A
Federal Magistrates Act 1999, s 17A
A and A [2000] FamCA 1638
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Af Petersens and Af Petersens (1981) FLC 91-095
B Pty Ltd & K (2008) FLC 93‑380
Bigg v Suzi (1998) FLC 92-799
Coluzzi v Coluzzi [2001] NSWSC 94
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Dougherty v Dougherty (1987) 163 CLR 278
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Ferrall & McTaggart (trustees for Sapphire Trust) v Blyton (2000) FLC 93‑054
Fisher v Fisher (1986) 161 CLR 438
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
House v The King (1936) 55 CLR 499
Re Will of Gilbert (decd)(1946) 46 SR (NSW) 318
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372
Jennings v Jennings (1997) FLC 92-773
Lanceley and Lanceley (1994) FLC 92-491
Lindon v The Commonwealth (No. 2) (1996) 70 ALJR 541
Norrish and Norrish; Rigoletto Nominees Pty Ltd (Intervener) (1990) FLC 92-152
Pelerman v Pelerman (2000) FLC 93-037
Praxoulis v Praxoulis (1995) FLC 92‑621
Rutherford and Rutherford (1991) FLC 92-255
Sieling and Sieling (1979) FLC 90‑627
Webster v Lampard (1993) 177 CLR 598
APPLICANT: Mrs Doisy
FIRST RESPONDENT: Mrs Wilmot-Doisy
SECOND RESPONDENT: Mr Doisy
FILE NUMBER: TVF 946 of 2002
APPEAL NUMBER: NA 59L of 2008
DATE DELIVERED: 6 February 2009
PLACE DELIVERED: Sydney
PLACE HEARD: Brisbane
JUDGMENT OF: Finn, Thackray and Strickland JJ
HEARING DATE: 12 November 2008
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 3 June 2008
LOWER COURT MNC: [2008] FamCA 706 REPRESENTATION
COUNSEL FOR THE APPLICANT: Mr Baston
SOLICITOR FOR THE APPLICANT: Miller Harris Lawyers
COUNSEL FOR THE FIRST RESPONDENT: Mrs Pack SC
SOLICITOR FOR THE FIRST RESPONDENT: Cope Family Law
COUNSEL FOR THE SECOND RESPONDENT: No appearance Orders
That the application for leave to appeal be dismissed.
That the applicant pay the costs of the first respondent as agreed, or in default of agreement as assessed.
IT IS NOTED that publication of this judgment under the pseudonym Doisy and Wilmot-Doisy is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA
AT BRISBANE
Appeal Number: NA 59L of 2008
File Number: TVF 946 of 2002
Mrs Doisy Applicant
And
Mrs Wilmot-Doisy First Respondent
And
Mr Doisy Second Respondent
REASONS FOR JUDGMENT
Introduction
1.This is an application for leave to appeal and if leave is granted, an appeal by Mrs Doisy (“the wife”) against an order made in proceedings between the wife and Mr Doisy (“the husband”) dismissing the wife’s application to strike out a response filed by Mrs Wilmot‑Doisy (“the intervenor”).
Background
2.The husband and wife were married in 1992 and separated in 2002.
3.Interim consent orders were made in property settlement proceedings between the husband and wife in December 2002. The orders provided for the division of all property owned by the husband and the wife. The proceedings were otherwise adjourned for five years with a view to orders then being made for an agreed division of superannuation entitlements.
4.The consent orders involved the payment of a sum of money to the wife and the transfer to the husband of various assets. The parties substantially complied with their obligations pursuant to the orders.
5.In November 2007 the wife filed an amended application seeking orders not only in relation to the division of superannuation but also for payment of an amount equivalent to half of the “total net value of the matrimonial pool”, less the sum she had received pursuant to the interim orders.
6.The proceedings were listed for trial before Benjamin J on 3 June 2008.
7.The intervenor applied for leave to intervene in the proceedings in March 2008. She and the husband had commenced living together in 2002. They had married in 2006 and their relationship was ongoing.
8.On 28 April 2008 an order was made granting the intervenor leave to intervene, with the record being noted that the wife “neither objects nor agrees to the application”.
9.On 6 May 2008 the intervenor filed a Form 1A response, an affidavit and a statement of financial circumstances. The Form 1A sought the following:
1.That pursuant to Section 78 of the Family Law Act 1975 (as amended) (“the Act”) there be a declaration that the [husband] holds 50% of the assets held in his name or in which he has a legal or equitable interest (“the said assets”) in trust for the [intervenor].
2.That a dollar value be attributed to the [intervenor’s] entitlement to the said assets.
3.That the value of the assets declared to be the property of the [intervenor] be quarantined from any claim or application by the [wife] against the [husband].
4. Such further or other order as this Honourable Court deems fit.
10.On 26 May 2008 the intervenor provided a Summary of Case document in which the following statements were made:
The [intervenor] seeks a Section 78 Declaration under the Family Law Act 1975 (as amended) (“the FLA”) as to her entitlement to the asset pool.
As a consequence of the fact that the [husband] and the [intervenor] were married [in] 2006 the only way to ascertain the [intervenor’s] entitlement to the asset pool is through section 79 of the FLA.
It is not appropriate for the [intervenor] to claim as a creditor using the third party provisions of Part VIIIAA as despite the fact that the [husband] and the [intervenor] signed what appears to be a commercial Agreement on 2 December 2002, the financial relationship between them is properly governed by the FLA and not be [sic] the law relating to debt. The [intervenor] is not a creditor – as is envisioned in the language of Part VIIIAA (see section 90AE (1)) – but rather is a spouse entitled to a property division pursuant to Section 79.
…
In 2002 when the parties signed the Agreement they were in a de facto relationship. Since their marriage the issues regarding property rights have come under the jurisdiction of the FLA. The fact that the parties signed an informal agreement in 2002 does not remove from the [intervenor] her rights and responsibilities under the FLA …
…
The [intervenor] seeks a declaration under Section 78 as to her entitlement to the asset pool pursuant to section 79.
11.The document concluded:
It is submitted that in circumstances where the [wife] is making a claim against assets to which the [intervenor] has an interest under the FLA due to her contributions it is important that her interest be quantified in order to protect them against the claim by the [wife].
12.It was asserted by counsel for the wife in his written submissions to us that at a pre‑hearing conference before a Registrar on 22 May 2008 the wife made an oral application for the intervenor to:
provide further and better particulars of her claim in the proceedings, [however] the Registrar declined to deal with that application, and intimated that it should be made to the trial Judge…
13.Different information was provided in the submissions of counsel for the intervenor. These asserted [our emphasis added]:
At the pre trial conference …[w]ithout notice to the parties the [wife] made an oral application for an adjournment. The grounds for the adjournment were firstly that the [wife] had issues with the material filed by the [intervenor] and the second ground related to the report from the single expert not yet being available. The Registrar declined to deal with the Application made by the [wife] on the grounds that the [wife] had herself failed to comply with his directions for filing of material for the trial however, he did indicate that such an application could be made to the trial Judge. The [intervenor’s] solicitor invited the [wife] to file a formal application in accordance with the Rules should there be an issue with the material filed. Such an application was never filed…
14.On 28 May 2008, six days after the conference and six days before trial, the wife’s solicitors wrote to the intervenor’s solicitors saying:
We note your client is seeking a declaring [sic] with respect of the husband’s property. Please provide us with your client’s particulars to be pleaded in respect of this course [sic] of action.
The hearing on 29 May 2008
15.On 29 May 2008, at a mention of the matter before Benjamin J, the wife’s counsel advised his Honour that she was not ready to proceed with the trial. In explaining her position, counsel said:
I made an application before the Registrar for further and better particulars of the intervenor’s claim so we’d know what case we had to meet… The Registrar didn’t feel able to deal with it and said that I should run that issue before your Honour.
16.Counsel for the wife went on to indicate the difficulty she had in understanding the case the wife was required to meet and said “My application to your Honour, and as was before the Registrar, that [the intervenor] ought plead the cause of action with particulars...”
17.The following exchange then took place between his Honour and Ms Cope, the intervenor’s solicitor:
HIS HONOUR: Do I take it, Mrs Cope (indistinct).
MS COPE Yes, thank you, your Honour.
HIS HONOUR: That the marriage between the husband [and] the second respondent is still a functioning (inaudible).
MS COPEAbsolutely, your Honour, which is why my client doesn’t seek an alteration of property interests.
HIS HONOUR Are you simply saying that there’s an equally (inaudible) by virtue of a respective claim.
MS COPE:My client’s interest in the property pursuant to section 79 existed during the marriage as well as after the marriage so, yes, her interest in the property exists pursuant to the legislation, section 79 of the legislation.
HIS HONOUR: So that it’s clear to [counsel for the wife], it’s an equitable – you claim an equitable right without asking the Court to exercise the powers of a section 79 or are you asking the Court to exercise its powers under section 79?
MS COPE:I think that you can only ascertain her entitlement by review of section 79.
HIS HONOUR: It’s a long ask, but ---
MS COPE:But I’m not asking for an alteration of interest, that’s correct, your Honour.
HIS HONOUR: So what you’re saying is that ---
MS COPE: She does have an equitable interest.
HIS HONOUR: She has an equitable interest and the equitable interest doesn’t arise by way of any resulting constructive trust. It arises out of her entitlements should the marriage break up under section 79.
MS COPE: That’s correct, your Honour.
18.After further interchange, his Honour asked the intervenor’s solicitor whether she could respond to “the letter” – by which we presume his Honour meant the letter of 28 May 2008 from the wife’s solicitors. She advised that she intended to ask counsel to respond to it. In response to a further question from his Honour, the intervenor’s solicitor indicated that she would not “have a problem” with providing a response by 4.00 pm the following day.
19.His Honour then said (addressing his remarks to counsel for the wife):
If the trial starts and you’re in any way prejudiced and you need to call further evidence there’s no reason why, if that occurred and you need to call further evidence, but I can’t give you leave during the trial or if it’s that prejudicial adjourn it half heard and finish that later on (inaudible).
20.Later his Honour said, again addressing his remarks to counsel for the wife:
--- my inclination on what I’ve heard so far is not to allow the adjournment. Issues arise which causes your client prejudice, such as it needs further adjournment or it needs further evidence, well then, so be it…
21.It was claimed in the written submissions of both counsel that at the mention on 29 May 2008, Benjamin J directed the intervenor to provide further particulars of her claim. Our own examination of the transcript and the Bench Sheet does not support this assertion; however, the transcript does make reference to a judgment having been delivered that was not transcribed. We accept the direction might have been contained in that judgment, although it was not recorded with other directions/orders shown on the Bench Sheet. Given that both counsel advised that such a direction was made, we will proceed on that assumption.
The particulars provided and the wife’s response
22.On 30 May 2008 the intervenor’s solicitors provided a document setting out material under five headings, “Property”, “Financial Contribution”, “Non financial Contribution”, “Value of Property” and “[Intervenor’s] Interest”. This document concluded with a statement that:
The [intervenor] also seeks an additional adjustment of between 10-15% overall, taking into account the above outlined non‑financial contributions and future needs.
23.The document was fairly summarised in the wife’s written submissions as tabulating “the [intervenor’s] alleged financial and non‑financial contributions to the property of the husband and to the welfare of their family (as outlined in her affidavits) and specifies the percentage of her claimed entitlement to that property arising from each of those contributions”.
24.After receiving the document, the wife’s solicitors wrote to the intervenor’s solicitors on 31 May 2008:
We note that you have still not pleaded a cause of action against our client…We advise that we will make an application to strike out your client’s claim at the commencement of the hearing of this matter.
25.The intervenor’s solicitor responded on 1 June 2008 as follows:
In response to the email… dated Saturday 31 May 2008 alleging that the [intervenor] has not pleaded a cause of action we confirm that our client’s cause of action is pleaded in her material and was discussed before The Honourable Justice Benjamin on Thursday 29 May 2008. In short the [intervenor] seeks a declaration under section 78 of the Family Law Act 1975 based on her equitable interest in the assets arising under section 79.
In the alternative the [intervenor] will plead a resulting trust, or failing that a constructive trust, and a presumption of advancement. In that regard we refer the parties to Calverley v Green (1984) FLC 91‑565 and to Trustees of the Property of Cummins (A Bankrupt) v Cummins (2006) 227 CLR 278.
26.On 2 June 2008 the wife’s solicitors responded (our emphasis added):
We request you plead your cause of action as to date this has not been done… We do not accept a “possible alternative” and request that if you intend to plead a trust we require particulars by 4:30 pm today… Should we not receive the particulars by the requested time, we put you on notice that we will be seeking an adjournment with costs.
27.The intervenor’s solicitors responded on the same day by referring to their correspondence of 30 May 2008 and 1 June 2008 and concluded “We shall oppose any application for an adjournment”.
The hearing on 3 June 2008
28.At the commencement of the trial before Benjamin J on 3 June 2008, counsel for the wife made an oral application that the intervenor’s “application be struck out as disclosing no cause of action against the wife”.
29.Counsel for the wife made a variety of submissions in support of her application, which can be summarised shortly as saying that the intervenor’s case was confusing and that she had not properly identified a “cause of action”. (Transcript of Proceedings of 3 June 2008, pp 1-8.) By “cause of action” we understand counsel to be referring to some specification of the basis upon which it was asserted that the intervenor was entitled to the declaration she sought.
30.In the course of her submissions, counsel for the wife referred to the particulars provided by the intervenor’s solicitors on 30 May 2008 but was unable to locate them amongst her papers and did not tender them. She did, however, describe the particulars as having “summarised the [intervenor’s] section 79 and 75(2) affidavit”. She then went on to say that in response to receipt of the particulars the wife’s solicitors had:
sent a letter to the parties advising them that as no cause had been pleaded we would be asking the Court today to strike out. The only response was:
We will not consent to an adjournment
which wasn’t being sought, we’re looking to strike out and secondly that if in effect the section 79 application was unsuccessful they would then plead a trust of some sort of other. Don’t know whether that’s just an attempt to – I haven’t got hard copies of these. I do apologise for this, your Honour.
31.With respect to counsel for the wife, these submissions do not accurately describe the correspondence. It is true that in their letter of 31 May 2008 the wife’s solicitors had initially foreshadowed a “strike out” application. However, after receiving the reply in which reference was made to a claim based on “a resulting trust, or failing that a constructive trust, and a presumption of advancement”, the wife’s solicitors indicated by their letter of 2 June 2008 that it was their intention to apply for an adjournment of the trial scheduled to commence on the following morning.
32.In any event, counsel for the wife went on to submit before Benjamin J that the intervenor did not have:
standing under section 79 so she cannot plead a section 79 case, which is what she’s done even to the most extraordinary step of asking for s 75(2) factors in the event that her current husband leaves her and she’s left to look after a child.
33.Counsel went on to say :
I have searched long and hard and have not found one other case remotely resembling this. Now I concede and have from the outset that she can depose to her contributions. She can depose to being a creditor as does the tax office, for example from time to time, intervenes for that very purpose or some sort of beneficiary of a properly pleaded trust. She can do any of those things that would enable your Honour to look at the pool.
Your Honour’s first job is to identify the pool. That’s not difficult but your Honour would then look at any liabilities, third party creditors of which she may be one, third party intervener beneficiaries on which she may be one under a properly pleaded stake or equitable common law and then, your Honour, goes to the next step after having found for example that the wife – in your Honour’s example she put $100,000 in, maybe it was a loan. If it wasn’t she’d have a case possibly in (inaudible) may be some lesser trust but may be even in the alternative she could plead unjust, your Honour. She could do a lot of things: inequity. Then once your Honour has determined the pool by reference to any existing liabilities, however they’re framed, your Honour then goes to the next step and looks at contributions.
So even if your Honour found that she was not a creditor, she was not a beneficiary in a trust or anything else that she might have pleaded, your Honour might then find that she made contributions by or on behalf of the husband and your Honour would then in the next step of these matters, take into the account the contributions of each party to the pool which your Honour has first identified by looking at third party creditors and others and adjust on contributions. And your Honour then goes of course to the other steps of future need but what the second wife cannot do is to stand in the shoes of a 79 applicant unless she brings a section 79 application.
34.Counsel for the intervenor commenced her submissions in response by saying:
… I can clarify the second respondent’s position which is in accordance with the response that was filed which is that what is being sought on behalf of the second respondent is a declaration as to her interests in this matter. Such declarations would relate to the property that is the subject of the application – the substantive application that brought this matter to the Court and for that reason, the second respondent is properly joined and has standing in these proceedings.
35.After some disagreement between counsel as to when objection had first been taken to the intervenor’s claim (it was in fact less than two weeks before trial), the following interchange took place between his Honour and counsel for the intervenor:
MS PEARSON: She is seeking, your Honour, declarations or a declaration with regard to what interest she may have in property that forms part of the pool that your Honour may be considering as between the [wife] and the [husband] as a result of her ---
HIS HONOUR: (Inaudible)
MS PEARSON: In my submission it’s ---
HIS HONOUR: (Inaudible)
MS PEARSON: It’s pursuant to the Family Law Act. In my submission, section 78 clearly gives your Honour power to make a declaration in the circumstances of this case where there are proceedings between the parties to a marriage. With respect, to existing title or rights in respect of property and you have that here between the [wife] and [husband].
The Court may declare the title or rights, if any, that a party has in respect of the property. And that is the interpretation that I place on that and I’d submit your Honour would accept this: that they could be the right title of any party that might have an interest in the property that is being the subject of proceedings between the [wife] and [husband] in this case. And that seems to be the way it has been interpreted in cases that have come before the Court. I too have ---
HIS HONOUR: The start of section 78 talks about proceedings between parties to a marriage.
MS PEARSON: Yes
HIS HONOUR: And the parties that these proceedings relate to parties in marriage of the first marriage ---
MS PEARSON: That’s right.
HIS HONOUR: --- declares that the right – the title rights, if any, that a party has respect for the property, are you saying that the term “a party” at the end of it all is an extended (inaudible)?
MS PEARSON: Yes, your Honour.
HIS HONOUR: And you say there’s some authority there?
36.Counsel for the intervenor went on to refer to an article by Dr Anthony Dickey concerning the position of third parties in matrimonial property proceedings. She also cited Af Petersens and Af Petersens (1981) FLC 91-095 and Norrish and Norrish; Rigoletto Nominees Pty Ltd (Intervener) (1990) FLC 92-152.
37.The interchange between counsel for the intervenor and his Honour then recommenced as follows [our emphasis added in this and later citations from transcript]:
MS PEARSON: They’re essentially examples where non [sic] or with interveners who have not had that standing of being parties to the marriage as such that is before the Court have been able to intervene and have that standing and obtained declarations under section 78.
HIS HONOUR: How do you then say your client’s entitled to adjustments (inaudible)?
MS PEARSON: Your Honour, it comes down to an overall assessment of what her interest may well be in those properties and it’s one suggested method that this Court could use to arrive at an accurate assessment of what her interest is, is by using the assessment that is embodied in section 79 to go through those steps of assessing contributions both financial and non‑financial et cetera to arrive at a figure that could then be reflected in a section 78 declaration. The other methods that could be utilised of course are based in equity such things as constructive trusts, equitable charges, and the like.
HIS HONOUR: But you’re there on the basis of section 79 (inaudible)?
MS PEARSON: My ultimate submission to your Honour is that there are alternate bases upon which the ---
HIS HONOUR: They would be?
MS PEARSON: The ---
HIS HONOUR: Because I think if I (inaudible) for the wife – I understand what you’re saying in terms of the adjustment to property. (Inaudible) the respondent and the applicant and this is that but if your fallback position is a (inaudible)
MS PEARSON: Your Honour, with regard to your pleading it as such, it’s always been the case that the application has been for a declaration of a trust or a declaration that the first respondent holds 50 per cent of the assets held in his name or in which he has a legal or equitable interest in trust for the second respondent. It’s in the response. It specifically says that that is pursuant to section 78 however, beneath that is of course – well section 78 is the section that gives your Honour the power to make the declaration. But how you arrive at the declaration that is to be made is obviously based on equitable principles and that’s what set out there and that hadn’t been specifically spelt in any more certain terms, that’s right.
There was a letter sent to the solicitors for the [wife] setting it out perhaps in more specific terms – setting out the constructive and/or equitable charges, that kind of thing. But your Honour as far as pleading the position that the [intervenor’s] position is based on, that’s done in a response that was filed in May of this year. The affidavit makes it clear what the basis is for seeking the declaration. It’s very clear the contributions et cetera which give rise to submissions at the end of the day that it may well be unconscionable for the [husband] to rely on sole ownership where there has been significant contribution by the [intervenor].
And those are all submissions with regard to the law which of course would not properly be contained in the body of an affidavit that’s been put together by the [intervenor], and in my submission, probably the subject of submissions at the conclusion of the case where the orders being sought and the cause of action, if it’s to be called that, has been properly set out in the response which is essentially a cross application.
38.His Honour next sought submissions from counsel for the husband. She did not have a great deal to add, other than to concede that the intervenor “clearly has an equitable interest in the property that is the subject of the division between the husband and wife”.
39.Counsel for the wife then replied. During the course of her submissions the following interchange occurred:
HIS HONOUR: As I understand it, the application of the [intervenor] is under section 78 and she’s saying that her interest in the property arises by virtue of the possibility of the section 79 application and/or some trust. Isn’t that the essence of what ---
MS PAGANI: I think that’s what she’s saying, your Honour. When I called upon them to plead it for the third time, although my learned friend in the middle says this is the first she’s heard of it but certainly her instructing solicitor has been present on each occasion. Then a letter was sent saying, “You haven’t pleaded it. We’re going to strike you out. If you want to plead any alternative cause of action, do it by 4 o’clock on Friday.” Nothing was done except the letter came back saying, “We won’t consent to an adjournment.”
Your Honour, the letter that’s received says in short, “The second respondent says the declaration under section 78 is”, this is after I’ve called for the pleading, “based on the equitable interest in the assets arising under section 79”. So my learned friend in the middle left that bit out of the sentence to you, your Honour. Then they go on, “In the alternative the [intervenor] will plead a result in trust or failing a constructive trust and a presumption of advancement. In that regard we refer to [Calverley] & Green” et cetera et cetera which is not relevant to these proceedings.
40.Counsel for the wife concluded:
What my learned friend has failed to address your Honour on is her cause of action. She says as a by the way, “Look if I don’t get up on 79, I will plead one of a number of trusts in the alternative.” I’ve been asking them to plead that now for two weeks and it hasn’t happened…
41.It will be noted that reference was made in submissions not only to the particulars provided by the intervenor but also to the correspondence that passed between the solicitors concerning the intervenor’s claim. It is common ground his Honour was not provided with copies of the particulars nor any of the correspondence. These were made available to us (by consent) on an application to introduce further evidence.
The reasons for decision
42.Having heard the submissions, Benjamin J initially said:
… at this stage, I don’t intend to pursue the order in the application. I indicate that I have some difficulties with it but I’m not going to rule on (inaudible) that there may or may not be some basis for the [intervenor] to make a claim under section 78 (inaudible). I don’t at this stage intend to dismiss so to strike out the [intervenor’s]. I will leave an opening for you to explore this application (inaudible).
43.Counsel for the wife then pressed his Honour to give formal reasons for refusing (at that stage of the proceedings) to strike out the intervenor’s response. His Honour replied:
HIS HONOUR: The only problem with that and I ask you are you aware of this is that if I do that and it’ll take some time to do that (inaudible) you will say to me that the issue is resolved. That if I determine not to strike out the response, then if it doesn’t enable your client to continue with her submissions I would like you to (inaudible) that’s what you want me to do?
44.Counsel for the wife continued to press for a formal determination of the application. His Honour obliged by delivering an ex tempore judgment.
45.His Honour began by noting that the basis for the wife’s application was that “a cause of action by the intervenor has not been made out”.
46.His Honour then noted that it had been asserted in untested evidence that the intervenor had paid a large sum of money to the husband to assist him to satisfy his obligations to the wife pursuant to the interim property settlement orders.
47.His Honour recorded the assertion by both the intervenor and the husband that the intervenor had made “significant contributions to property between 2002 and the date of this hearing” and he observed that the intervenor:
has filed a detailed affidavit setting out her contributions and has filed a Response seeking a declaration that she has an equitable or legal interest in part of the property of the husband, that is the very same property to which the wife now claims an interest pursuant to s 79 of the Family Law Act.
48.His Honour further recorded that the basis of the intervenor’s application had been set out in her affidavit and statement of financial circumstances and that the wife “has sought and received some particulars”.
49.His Honour then observed that the first step in the process of determining the property settlement proceedings was to determine the pool of assets. He said “it seems to me on the evidence albeit untested of the intervenor that that is one of the significant issues regarding which she has sought to intervene and claim an equitable or other interest in some of that property”.
50.His Honour went on to say, in what is a crucial portion of his judgment:
The applicant complains that the material provided is not in sufficiently detailed form as to enable her to properly run this case. With respect, I disagree with that submission on the basis that both the intervenor and the husband have set out in detail the basis of their respective claims in affidavits and statements of financial circumstances. Whilst it may be that it has not been particularised as to whether it is a constructive or resulting trust or whether it is advancement or whether it is some other principle or some other part under the Family Law Act it is clear that there was a declaration sought and the factors upon which that declaration is sought, is set out in those affidavits.
51.His Honour noted that “these proceedings are of course on foot between the husband and the wife and the question is whether the intervenor can seek a declaration of her interest in property under s 78”. He recorded that he had been provided with Dr Dickey’s article, ‘The Position of Third Parties in Property Proceedings’ (1995) 9 Australian Journal of Family Law 190, from which he quoted the following passages:
Although there is no reported case on point, it is now beyond doubt that, with just one exception, a court has no power to order an alteration of property interests either against or in favour of a third party under s 79(1) of the Family Law Act. This is so notwithstanding that a third party may have intervened in proceedings under the Act and is thus by s 92(3) “deemed to be a party to the proceedings”. It may perhaps initially be thought otherwise. It may be thought that as a consequence of s 92(3), an intervener in property proceedings is susceptible to an order under s 79(1), for s 79(1) gives a court the power to alter the interests of “the parties” in property. It is, however, now clear that the expression “the parties” in this context means the parties to the marriage, and not the parties to the proceedings. The one exception referred to is a child of the marriage. …
On the other hand, there seems little doubt that a court does have the power to make a declaration of the property interests of any third party under s 78(1) provided two conditions are satisfied. The first is that the third party must be a party to proceedings between the parties to a marriage for a declaration under s 78, and not for some other form of relief, and the second is that the declaration be in respect of the same property that forms the subject of the proceedings between the parties to the marriage.
52.His Honour then said:
Section 78(1) of the Family Law Act provides:
"In proceedings between the parties -
with emphasis on the word "the" -
"to a marriage with respect to existing title or rights in respect of property, the court may declare the title or rights, if any, that a party" -
and I emphasise the word "a" -
"has in respect of the property."
It seems to me that it is possible for the court to make a declaration in favour of the intervenor whether by virtue of a trust or by virtue of implicit rights that she may have in the future under the provisions of the Family Law Act. I am not asked, as I understand it, to make orders under s 79 as between the husband and the intervenor.
I do not know what orders, if any, I will make for the intervenor under s 78 or what declaration I am going to make under s 78. I do not know whether that would be in relation to her entitlements as the wife of the husband or under some other equitable principle. But in terms of justice and fairness between the parties it seems appropriate that the intervenor is entitled to argue her case in these proceedings and she has, as I have said earlier, outlined that case in affidavit form in early May 2008.
53.His Honour then proceeded to seek submissions concerning the further conduct of the trial.
54.On the next morning, counsel for the wife foreshadowed an appeal against his Honour’s order and also applied for an adjournment. The application was not determined as the parties reached an agreement and the trial was adjourned for preparation of draft consent orders. The settlement later collapsed and the proceedings remained pending when we heard the application for leave to appeal.
The applicable law
55.The principles relevant to applications for leave to appeal against interlocutory orders are well known. An applicant seeking leave to appeal must demonstrate that there has been an error of principle and/or a substantial injustice to one of the parties: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 176; Rutherford and Rutherford (1991) FLC 92-255 at 78,715.
56.The threshold in applications for leave to appeal is high when the order sought to be impugned does not determine substantive rights. In dealing with such matters, appellate courts have often approved the following observations of Sir Frederick Jordan in Re Will of Gilbert (decd) (1946) 46 SR (NSW) 318 at 323:
... I am of the opinion that ... there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.
57.It is important to keep in mind also the principles that are applied in appeals against orders involving the exercise of discretion. As was said in the High Court in House v The King (1936) 55 CLR 499 at 504-505:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion.
The proposed grounds of appeal
58.The wife proposes to rely upon the following Grounds of Appeal if leave to appeal is granted:
1.In so far as the Trial Judge failed to dismiss or strike out the [intervenor’s] intervention in the proceedings between the [wife] and the husband on the basis that she is entitled to argue, pursue or protect some supposed claim by the [intervenor], against the husband under Section 79 of the Family Law Act 1975 (“the Act”), he erred in law in that:
(a)There is no justiciable issue between the [intervenor] and the husband in relation to any such supposed claim;
(b)Any such supposed claim is incapable of affecting, and therefore irrelevant to the claims of the [wife] and the husband against each other in these proceedings; and
(c)In the circumstances that currently exist between the [intervenor] and the husband, any such supposed claim cannot give rise to any enforceable rights by the [intervenor] against the husband or any of his property, which such rights can only arise upon making of an order in the [intervenor’s] favour against the husband under Section 79 of the Act.
2.In so far as the trial Judge failed to dismiss or strike out the [intervenor’s] intervention in the proceedings between the [wife] and the husband on the basis that she is entitled to advance some claim to a legal or equitable interest in some property of the husband, and to seek to protect that interest against the [wife’s] claim in the proceedings, he erred in law and/or the exercise of his discretion, in that:
(a)He failed to require the [intervenor] to identify the precise nature of the claimed interest, and the factual and/or legal basis upon which she intends to rely to establish that interest; and
(b)In so failing, he denied procedural fairness to the [wife], in that, without such identification, the [wife] cannot know what case she will be called on to meet at the trial.
3.That the trial Judge erred in that he denied procedural fairness to the [wife] in relying upon a journal article published in 1995 handed up by the [intervenor] during the course of argument, in circumstances where:
(a)The article was not provided to either the [wife] or the husband and no notice of its intended use was given to the [wife];
(b)The trial Judge was advised, from the bar table, that neither the [wife] nor the husband had been provided with the article;
(c)The trial Judge, in accepting the hand up of the article, assured the parties that he would not rely upon it;
(d)The trial Judge read into the record as part of his reasons one paragraph of the article, and relied upon it in his determination, and failed to give the [wife] the opportunity to obtain a copy of, or read, the article;
(e)The comments in paragraph (d) read by the trial Judge specifically noted there was no authority to support the opinions therein expressed.
4.The trial Judge erred as a matter of law in placing weight, and relying, upon the opinions expressed in the said article without supporting authority.
5.The trial Judge erred in law in accepting as factual and proven, the evidence contained in the husband’s affidavit; and in relying upon that evidence, in circumstances where:
(a) The material had not been read nor put into evidence;
(b)Objections to the affidavit had not been heard nor determined (and counsel for the husband had agreed to some aspects of the affidavit being struck out as inadmissible and that other aspects would be the subject of argument, with rulings to be sought from the trial Judge).
6. The trial Judge erred in law in finding:
(a)That the [intervenor] had an “existing right or title” to the husband’s property and consequently that Section 78 of the Act alone was sufficient to found her proceedings against the [wife];
(b)That the [intervenor] had an existing right pursuant to Section 79 of the Act which she was entitled to pursue in proceedings between the [wife] and the husband, arising from their marriage, to which the [intervenor] is not a party; and
(c)That the [intervenor] was not required to plead any cause of action against the [wife] and that the facts that the [intervenor] relied upon in her affidavit, corroborated by the husband, in support of a supposed claim under Section 79 of the Act, was sufficient to enable the [wife] to defend the [intervenor’s] claims, whatever may be the ultimate cause of action relied upon by her from time to time throughout the course of the proceedings.
7.In failing to dismiss the [intervenor’s] intervention in the proceedings between the [wife] and the husband, the trial Judge failed to have regard to the fact that the [intervenor], despite having been directed by both Registrar Victoire and the trial Judge at preliminary hearings, to particularise her claims, had failed to properly plead or particularise her claims, save to set out in letter form, the claims already made in her affidavit based upon a supposed right under Section 79 of the Act, and further, merely stated in letter form that:
“The second respondent seeks a declaration under Section 78 of the Family Law Act 1975 based on her equitable interest in the assets arising under Section 79.
In the alternative, the second respondent will plead a resulting trust, or failing that a constructive trust, and a presumption of advancement”.
8.The trial Judge erred in law and denied procedural fairness to the [wife] in requiring the [wife], at trial, to challenge the [intervenor] on all possible causes of action pursuant to, alternatively, Section 79 of the Act; a constructive trust; a resulting trust; and/or a presumption of advancement, and in holding that he would make a determination as to whether the [intervenor] had standing on all or any of those possible alternative causes of action, at the end of the trial.
59.We were advised that proposed Ground 3 would not be pursued, but that the wife would propose relying on a new Ground 3A, in the following terms:
Further and in the alternative, the passages cited by the learned trial Judge from the journal article referred to in the previous ground provide no support for the decision he came to with respect to the [wife’s] application, and his Honour erred in relying upon them to found his decision.
The relevant Rules and legal principles
60.The Family Law Rules 2004 contain a number of provisions which we consider to be of relevance in determining this matter.
61.Rules 4.01(1)(a) and 9.01(2)(c) require a party seeking final orders to “give full particulars of the orders” sought in their Application or Response.
62.A person seeking to intervene in proceedings is required to provide in their affidavit a schedule “setting out any orders that the person seeks if the court grants permission to intervene”: r 6.05(b)(ii).
63.Pursuant to r 11.01, the Court may make “procedural orders about how and when the case will be heard or tried” and “order a party to provide particulars, or further and better particulars, of the orders sought by that party”.
64.Rule 10.12 provides that:
A party may apply for summary orders after a response has been filed if the party claims, in relation to the application or response, that:
(a) the court has no jurisdiction;
(b) the other party has no legal capacity to apply for the orders sought;
(c) it is frivolous, vexatious or an abuse of process; or
(d) there is no reasonable likelihood of success.
65.Pursuant to r 10.13:
After the final resolution event, a party may apply for a decision on any issue, if the decision may:
(a) dispose of all or part of the case;
(b) make a trial unnecessary;
(c) make a trial substantially shorter; or
(d) save substantial costs.
66.Rule 10.14 provides that on an application made pursuant to rr 10.12 or 10.13, the court may:
(a) dismiss any part of the case;
(b) decide an issue;
(c) make a final order on any issue…
67.Rule 1.12 provides that the Court may dispense with compliance with any of the Rules at any time.
68.The Family Law Rules 2004 are properly read as supplementing the power of the Court to dismiss frivolous or vexatious proceedings pursuant to s 118(1) of the Family Law Act 1975. The Rules are also to be read in the context of the many cases confirming the Court’s inherent power to dismiss or permanently stay an application which cannot succeed, as to which see the authorities discussed in Bigg v Suzi (1998) FLC 92-799 at 84,974.
69.The Family Law Act 1975 does not contain a provision similar to s 31A of the Federal Court of Australia Act 1976 and s 17A of the Federal Magistrates Act 1999, which provide that a case need not be “hopeless” or “bound to fail” in order to have “no reasonable prospect of success”. We therefore need not concern ourselves with the developing jurisprudence in the Federal Court and the Federal Magistrates Court concerning a possible “lowering of the bar” in summary dismissal applications following the 2005 amendments to the legislation governing those courts: see for example the divergence of views in the Full Court of the Federal Court in Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd (2008) 167 FCR 372.
70.The principles which we consider applicable to proceedings in the Family Court of Australia were usefully distilled by Kirby J in LindonvThe Commonwealth (No. 2) (1996) 70 ALJR 541 at 544-545, (as follows [citations omitted]:
1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided;
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 reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
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 summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;
4.Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;
5.If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. …
6.The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
71.To similar effect, Dixon J said in Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91:
The application [for summary dismissal] is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.
72.Barwick CJ cited the remarks of Dixon J in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129‑130 and said:
The plaintiff rightly points out that the jurisdiction summarily to terminate an action is to be sparingly employed and is not to be used except in a clear case where the Court is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. … [I]n my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal. On the other hand, I do not think that the exercise of the jurisdiction should be reserved for those cases where argument is unnecessary to evoke the futility of the plaintiff's claim. Argument, perhaps of an extensive kind, may be necessary to demonstrate that the case of the plaintiff is so clearly untenable that it cannot possibly succeed.
Discussion
73.The Family Law Rules have not provided for the “striking out” of applications or responses since formal pleadings were abolished in 1995. For the reasons discussed by the Full Court in Bigg v Suzi (supra at [5.4]), such a provision would be “a nonsense” in the absence of a system of pleadings.
74.The wife’s “strike-out” application before Benjamin J was therefore misconceived. It is apparent that what the wife wanted was an order for summary dismissal pursuant to r 10.14 and her application should therefore have been couched in those terms.
75.An application with such potentially serious consequences would ordinarily be made by the filing of an Application in a Case (as required by r 5.01) rather than being made orally. The application before Benjamin J was not only made orally but in circumstances where, notwithstanding the assertions of counsel for the wife to the contrary, the intervenor was on notice only that an application would be made for an adjournment.
76.Apart from its informality, it is apparent that the wife’s application was attended by a degree of confusion. Counsel for the wife was unable to tender to his Honour the particulars provided by the intervenor. Counsel also did not have to hand the flurry of correspondence that had passed in the days immediately before the trial (which is no doubt why counsel confused the letter sent by her instructors on 31 May 2008 with that sent on 2 June 2008).
77.If the wife’s application had been made formally and with proper notice it is likely his Honour would have received more helpful submissions than he did concerning the principles to be applied when one party seeks to prevent another party from having their case heard. It might also have encouraged the intervenor to give more careful consideration to the precise basis on which her claim was being made.
78.In the proceedings before Benjamin J no reference was made to the relevant authorities we have cited above (nor to the many other authorities to similar effect, including the decisions of the High Court in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99 and Webster v Lampard (1993) 177 CLR 598 at 602-603 and the decisions of the Full Court in Bigg v Suzi (supra), Pelerman v Pelerman (2000) FLC 93-037 and Ferrall & McTaggart(trustees for Sapphire Trust) v Blyton (2000) FLC 93‑054). Nor was any reference made to the relevant Rules to which we have referred.
79.The submissions made by counsel for the wife before us (as before Benjamin J) focussed on the express intention of the intervenor to rely on s 79 of the Family Law Act 1975 as the basis for the declaration sought under s 78. Counsel for the wife submitted that it is “clear law that s 79 creates no legal or equitable interest in any property, it merely provides each spouse with an inchoate or incipient right to seek an order under the section against the property of the other spouse”.
80.We accept that the intervenor’s Summary of Case document in the proceedings below was drawn on the express basis that the “the only way to ascertain the [intervenor’s] entitlement to the asset pool is through section 79”. We also accept that at the mention hearing on 29 May 2008, the intervenor’s solicitor accepted (in response to a proposition formulated by his Honour) that the intervenor’s claim to an equitable interest in the husband’s assets arose under s 79 and did not “arise by way of any resulting constructive trust [sic]”.
81.We do not cavil with the submission made on behalf of the wife that there is much authority to indicate that a potential entitlement of a spouse to pursue s 79 proceedings does not confer any legal or equitable interest in property held by the other spouse (see Sieling and Sieling (1979) FLC 90‑627 at 78,262; Fisher v Fisher (1986) 161 CLR 438 at 453; Dougherty v Dougherty (1987) 163 CLR 278 at 293 and Praxoulis v Praxoulis (1995) FLC 92‑621 at 82,244 – 82,245). There would therefore appear to be some force in the submission that the intervenor’s purported reliance on s 79 was misconceived. This is so even if it is possible for s 79 proceedings to be commenced prior to any breakdown of the marital relationship (as to which see the discussion in Jennings and Jennings (1997) FLC 92-773 and see also A and A [2000] FamCA 1638).
82.However, despite what was said about reliance on s 79 in the intervenor’s Summary of Case document and by her solicitor on 29 May 2008, his Honour was informed by counsel on 3 June 2008 that the intervenor had an alternative basis in equity for seeking a declaration under s 78. Having heard this, counsel for the wife accepted his Honour’s formulation that the “essence” of the intervenor’s claim was “that her interest in the property arises by virtue of the possibility of the section 79 application and/or some trust”. This was in accordance with the advice contained in the letter from the intervenor’s solicitors of 1 June 2008 that “in the alternative the [intervenor] will plead a resulting trust, or failing that a constructive trust, and a presumption of advancement”.
83.The intervenor was not, in our view, necessarily bound by the position adopted in her Summary of Case document, which is arguably no more than an aid for the Court. Nor do we regard the intervenor as being bound by what can be reasonably seen as “off the cuff” comments made by her solicitor in dealing with an oral application. This is especially so where the solicitor made clear that she would be relying on counsel to particularise the intervenor’s claim after the hearing concluded. However, there is no doubt that what the intervenor said in her Summary of Case document, as well as what her solicitor said to the trial Judge, coupled with the late addition of an alternative basis for her application, created significant confusion in the proceedings and justified the response of the wife in seeking further and better particulars.
84.Counsel for the wife properly acknowledged before us that:
it may be open to a second spouse, in the position of the [intervenor], to mount a proper basis for intervention in property proceedings between her husband and a former wife, on the basis of a claim to some existing equitable interest in some property to which the husband holds the legal title, in order to seek a declaration of that interest under s. 78 of the Act, and thus protect that interest against orders which might otherwise be made in favour of the former wife in those proceedings.
85.In our view, once this was acknowledged, the wife would have no basis on which to seek the summary dismissal (or striking out) of the intervenor’s entire claim, especially in circumstances where the husband (being the party against whom the declaration was sought) had conceded that the intervenor did have an equitable interest in property to which he held the legal title.
The outcome – leave to appeal refused
86.We accept that the intervenor’s case below was presented in a confusing and at times contradictory fashion. If such were sufficient to grant an order for summary dismissal, the workload of courts would be greatly reduced. However, as Kirby J has said:
Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment…
87.While we accept that the intervenor’s initial sole reliance on s 79 as a basis for founding the declaration appears misconceived, we cannot ignore the fact that by the time Benjamin J came to rule on the wife’s application, the intervenor had articulated an alternative and potentially plausible basis for seeking relief.
88.Once she had done so, we consider the only issue was whether or not the intervenor should be required to go further and particularise the precise equitable principle(s) on which she intended to rely. The Rules are silent on what is required in such circumstances, making provision only for the giving of particulars of “orders”, not for particularisation of the basis upon which orders are sought.
89.Benjamin J had directed the intervenor to provide particulars. He was informed that she had purported to comply with the direction. However, he was not provided with the particulars or any of the correspondence that had been exchanged, although he knew the correspondence indicated that the intervenor was no longer basing her claim solely on s 79.
90.In those circumstances, we do not accept that his Honour erred in the exercise of his discretion in refusing to grant relief of a nature that is “rarely and sparingly provided”. In coming to this conclusion we do not wish to be seen as expressing any view on the application of the various equitable principles on which the intervenor had indicated she intends to rely. Nor do we make any comment on the adequacy of the evidence in the wife’s affidavit to invoke these principles. These matters were not adequately explored before his Honour or before us, the focus of the wife’s case having been directed towards the intervenor’s original reliance on s 79.
91.It was also argued on behalf of the wife, ironically relying upon a passage from Dr Dickey’s article quoted above, that third parties can only seek a declaration under s 78 if they are “a party to proceedings between the parties to a marriage for a declaration under section 78, and not for some other form of relief”. We are not entirely convinced (in the absence of proper argument) that the provision should be construed as narrowly as Dr Dickey suggests. In any event, although the intervenor here might be conveniently described as a “third party” in the proceedings between the husband and wife, she has an independent entitlement to seek relief under s 78 as the spouse of the husband.
92.For the sake of completeness we record that we do not consider there is any substance in the proposition put by counsel for the wife that the interests of the intervenor could be adequately protected by her swearing an affidavit in support of the husband’s case. Nor is there any substance in the allied submission that it is:
fundamentally unjust to the [wife] and essentially an abuse of the process of the Court for two parties…with essentially the same interest in the proceedings (viz. the minimisation of the [wife’s] claim against the husband’s property) to be separately represented in those proceedings, thus obliging the [wife] to face two opponents in the forensic contest instead of one.
93.These submissions overlook the fact that the interests of the husband and the interests of the intervenor are not necessarily ad idem. They also overlook the considerable forensic and substantive advantages available to parties that are not enjoyed by witnesses. Finally, the existence of an alternative means of protecting one’s interests is not a basis for denying a party the opportunity to seek a remedy that is prima facie available to them.
94.For these reasons, we are not satisfied that any error of principle or substantial injustice has been demonstrated. The application for leave to appeal will therefore be dismissed.
Costs
95.Counsel for the intervenor sought an order for costs against the wife in the event the application for leave to appeal failed.
96.Counsel for the wife submitted that no order for costs should be made in the event the appeal was dismissed. His submissions, to an extent, repeated matters advanced in support of the application for leave to appeal. In particular, counsel relied upon the imprecise manner in which the intervenor’s case had been presented below and the assertion that her reliance on s 79 to found the declaration was “couched significantly in error”.
97.We consider an order for costs should be made, since the wife was entirely unsuccessful. We are confirmed in our view having regard to three matters in particular.
98.First, the wife’s “strike out” application was itself “couched significantly in error”. It was presented in an unsatisfactory fashion – orally; without adequate notice; without the tender of relevant documentation; and without reference to Rules or authority.
99.Secondly, his Honour only formally ruled against the wife’s application at the stage he did at the insistence of the wife’s counsel, in circumstances where his Honour had made clear his preference to allow the trial to unfold at least a little further before he considered the issue.
100.Thirdly, his Honour made clear that he would grant procedural indulgences if the wife was prejudiced by the matters about which she had complained. Once the wife elected instead to appeal she exposed herself to an order for costs in light of the well known reluctance of appellate courts to interfere in the conduct of trials.
I certify that the preceding one hundred (100) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 6 February 2009
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