Gibbs and Gibbs and Ors

[2015] FamCA 976

FAMILY COURT OF AUSTRALIA

GIBBS & GIBBS & ORS [2015] FamCA 976

FAMILY LAW – PRACTICE & PROCEDURE – application for leave to amend initiating application – where amendment joins third parties – where claim against third parties arises out of financial agreement – whether the court has accrued jurisdiction to determine claim in negligence against third parties – where amendment would require the trial dates to be vacated – where leave to amend granted – where trial dates vacated.

Family Law Act 1975 (Cth)

F Firm & Ruane and Ors (2014) FLC 93-611

Noll & Noll and Anor (2013) FLC 93-529

APPLICANT: Mr Gibbs

1st RESPONDENT: Ms Gibbs

2nd RESPONDENT: Mr Gleist

3rd RESPONDENT: Mr Blake

4th RESPONDENT: Mr Geller

FILE NUMBER: BRC 10882 of 2013

DATE DELIVERED: 2 November 2015

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Hogan J

HEARING DATE: 2 November 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Lloyd, Senior Counsel

SOLICITOR FOR THE APPLICANT: Manning Lawyers

COUNSEL FOR THE 1ST RESPONDENT: Mr Looney, Queen’s Counsel and Mr Theile

SOLICITOR FOR THE 1ST RESPONDENT: Schultz Toomey O’Brien

COUNSEL FOR THE PROPOSED 2^ND, 3^RD & 4^TH RESPONDENTS: Mr Jennings

SOLICITOR FOR THE PROPOSED 2^ND, 3^RD & 4TH RESPONDENTS: HWL Ebsworth Lawyers

Orders

IT IS ORDERED THAT

1. The husband has leave to amend the Initiating Application by adding Mr Gleist, Mr Blake, and Mr Geller as parties to the proceedings and in accordance with the Further Amended Initiating Application which is exhibited to the affidavit of Ms B filed 7 October 2015.

2. The hearing of this matter, for three (3) days commencing 25 November 2015, is vacated.

IT IS DIRECTED THAT

1. By 16 November 2015, the husband file and serve on the Second, Third and Fourth Respondents a Statement of Claim, identifying all material facts upon which he relies in his claim against those parties.

2. By 23 November 2015, the Second, Third and Fourth Respondents make any request for further and better particulars of the Statement of Claim.

3. By 30 November 2015, the husband file and serve any further particulars provided in response to any request for further and better particulars of the Statement of Claim made by the Second, Third and Fourth Respondents.

4. By 14 December 2015, the Second, Third and Fourth Respondents file and serve their Defence.

5. By 21 December 2015, the husband make any request for further and better particulars of the Defence filed and served by the Second, Third and Fourth Respondents.

6. By 18 January 2016, the Second, Third and Fourth Respondents file and serve any further particulars provided in response to any request made by the husband for further and better particulars of the Defence.

7. By 1 February 2016, the husband file and serve any Reply to the Defence.

8. The costs of all parties of and incidental to the Application in a Case filed 7 October 2015 and the appearance before her Honour Justice Hogan on 28 October 2015 and 2 November 2015 are reserved.

IT IS FURTHER DIRECTED THAT

1. Any Application in a Case filed by the wife seeking interim financial relief shall be filed and served by 4.00 pm on 16 November 2015.

2. Any Application in a Case filed by the wife seeking interim financial relief in accordance with these directions shall be listed before the Honourable Justice Hogan at 10.00 am on 25 November 2015.

AND IT IS FURTHER DIRECTED THAT

1. The matter return before a Registrar of the Court for further directions at 12.00pm on 25 February 2016.

2. The legal representatives have liberty to appear by telephone at the Directions hearing referred to in paragraph 13.

IT IS NOTED

A.Save as is provided for in this Order, the matter is not required to be listed before the Honourable Justice Hogan for further hearing and determination.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Gibbs & Gibbs and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 10882  of 2013

Mr Gibbs

Applicant

And

Ms Gibbs

First Respondent

And

Mr Gleist

Proposed Second Respondent

And

Mr Blake

Proposed Third Respondent

And

Mr Geller

Proposed Third Respondent

REASONS FOR JUDGMENT

1. The husband and wife commenced their relationship in early 2003.  They started to live together shortly thereafter.  They married in 2005,  the day after they executed an agreement which purported to be a binding financial agreement for the purposes of the Family Law Act 1975 (Cth).  They separated in late November 2013. 

2. There are two children of their marriage and in July this year they reached agreement in relation to final parenting orders which were in their children’s best interests. 

3. In July of this year also, an order was made which set aside the agreement entered into by the parties on the basis that it was voidable or unenforceable because of uncertainty in its terms. 

4. The matter was set down on that day for final hearing for three days commencing 25 November 2015.  At that time, the parties, it seemed, had agreed a timetable which included obtaining certain evidence and attending at a mediation. 

5. I have now before me an Application in a Case filed by the husband seeking leave to file a further Amended Initiating Application by which he seeks to join his former solicitors, the partners of C Lawyers, as parties to the proceedings.  A solicitor in that firm’s employ prepared the agreement.   The husband asserts negligence on the part of the solicitor in preparing the agreement and asserts that such negligence and/or other claim established by him has resulted (or will result upon the determination of the property settlement proceedings between him and his wife) in him suffering damage. 

6. Whilst criticism of the pleading may well be founded, the deficiencies can, it seems to me – as was acknowledged by Mr Lloyd of Senior Counsel on behalf of the husband – be remedied by a requirement that the husband plead the case against the parties who are proposed as the Second, Third and Fourth Respondents with proper particularity, identifying the facts, matters and circumstances relied upon as a basis for the relief sought so that those persons can properly know the case brought against them and that they have to meet. 

7. Having had regard to the helpful submissions prepared by the legal representatives on behalf of all of the parties and having had regard to the Full Court decision in Ruane and its discussion of the earlier Full Court decision in Noll, I reach the conclusion that the Court has jurisdiction to hear the claim sought to be advanced by the husband against his former solicitors.  It is clearly established by authority that, once the Court is persuaded as to the existence of jurisdiction, there is no discretion as to whether to exercise that jurisdiction. 

8. I do not accept that the dispute between the husband and the proposed Second, Third and Fourth Respondents is not within jurisdiction. 

9. Having had regard to Ruane and particularly the Judgment of Thackray J and the discussion of his Honour there, I am persuaded that, in the circumstances that exist here (which are to a large degree identical to those which existed in Ruane and which were the subject of consideration by the Full Court) the Court has jurisdiction either pursuant to s 31(1)(a) or as a consequence of accrued jurisdiction.

10. I accept that the claim for damages falls within the Court’s jurisdiction because it forms part of the controversy of which an integral part or element or substantial aspect is itself undoubtedly within jurisdiction conferred upon this Court by statute. 

11. Whilst the issue between the husband and the wife about the validity of the financial agreement is resolved, that is not the case between the husband and the proposed Respondents.  The submission made on behalf of the proposed Second, Third and Fourth Respondents at paragraph 9 of the outline of written submissions, wherein it refers to the introduction of new “issues”, really only identifies, in my view, the type of relief sought.  This does not effect whether or not there is a single justiciable controversy, as that phrase is understood to refer to the controversy which arises out of common transactions or substratum of facts, it being unnecessary that the facts on which that class depends do not wholly coincide. 

12. Further, it is clear that the matter as a justiciable controversy is identifiable independently of the proceedings brought for its determination and encompasses all of the claims made within the scope of the controversy. 

13. I consider that the husband’s claim against the Second to Fourth proposed Respondents is an aspect of a single matter arising under Federal law.  I am satisfied that such claim is not completely separate and distinct from the matter which attracts federal jurisdiction and that it is not some distinct and unrelated non-federal claim.  I am persuaded that the non-federal claim and the federal claim are within the scope of one controversy and, thus, within the ambit of a matter and, thus, within the jurisdiction of the Court.

14. As has been made clear by the Reasons delivered by May J at paragraph 9 in Ruane and Thackray J in paragraph 64 in Ruane, it is not necessary that the determination of the federal claim is not dependent upon the determination or resolution of the non-federal claim. 

15. I do not accept that the determination of the issue in relation to the nature of the financial agreement between the husband and the wife has severed any common transaction or substratum of facts and the fact that the claim and/or relief sought by the husband against the proposed Second, Third and Fourth Respondents is different does not mean that the substratum of fact out of which the issues arise is different.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hogan delivered on 2 November 2015.

Associate:                 

Date:    2 November 2015