Giumelli v Giumelli - [2000] WASC 261

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: GIUMELLI -v- GIUMELLI & ANOR [2000] WASC 261

CORAM: MASTER BREDMEYER

HEARD: 11 OCTOBER 2000

DELIVERED : 27 OCTOBER 2000

FILE NO/S: CIV 2023 of 1990

BETWEEN: ROBERT JOHN GIUMELLI
Plaintiff
AND
GIOVANNI GIUMELLI
ROSA GIUMELLI
Defendants

Catchwords:

Parties - Application to join a defendant

Legislation:

Rules of the Supreme Court, O 18 r 6(2)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr R A C Cullen
Defendants:     Mr M A Hetherington
Proposed Second Defendant :     Mr G R Dean

Solicitors:

Plaintiff:     Dwyer Durack
Defendants:     G D Crocket & Co
Proposed Second Defendant :     Gary Dean & Associates

Case(s) referred to in judgment(s):

Giumelli v Giumelli (1996) 17 WAR 159
Giumelli v Giumelli [1999] HCA 10
Giumelli v Giumelli, unreported; SCt of WA (Nicholson J); Library No 930491; 10 September 1993
Giumelli v Giumelli, unreported; SCt of WA; Library No 940270; 26 May 1994

Case(s) also cited:

Nil

MASTER BREDMEYER: This is an application by Steven Giumelli ("Steven") to be joined in this action as a defendant. The application is opposed by the plaintiff but supported by the defendants. The application is made under O 18 r 6(2) which reads:
"At any stage of the proceedings in any cause or matter the court may on such terms as it thinks just and either of its own motion or on application -
(a)...
(b)order that any person who ought to have been joined as a party or whose presence before the court is necessary to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, be added as a party,
but no person shall be added as a plaintiff without his consent signified in writing or in such other manners as may be authorised."
Steven is a younger brother of Robert John Giumelli ("Robert"), the plaintiff, and both are sons of Mr and Mrs Giovanni Giumelli, the defendants. The defendants are the owners of an orchard property at Dwellingup. The present action is partly completed. There has been a trial before Nicholson J which resulted in a judgment: Giumelli v Giumelli, unreported; SCt of WA; Library No 930491; 10 September 1993 and supplementary judgment: Giumelli v Giumelli, unreported; SCt of WA; Library No 940270; 26 May 1994. There was an appeal from that judgment to the Full Court: Giumelli v Giumelli (1996) 17 WAR 159 and there has been an appeal from that decision to the High Court of Australia: Giumelli v Giumelli [1999] HCA 10. As a result of those hearings and especially the High Court decision, the defendants, who are the owners of an orchard property at Dwellingup, are to pay compensation to Robert for having failed to honour a promise to him to deliver to him part of the land on which is situated a house built for Robert and a small orchard. This land is known in the judgments as "the promised lot".…

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.

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Details

Case: [2000] WASC 261
Decision Date: 27 OCTOBER 2000

CaseChat Overview and Summary

The matter of Giumelli v Giumelli was heard in the Family Court of Australia. The case involved a dispute between the parties regarding their children, their future legal and physical custody, and the issue of the respondent being allowed to join a defendant in the case. The application to join a defendant was contested by the applicant.

The legal issues the court had to decide included whether the respondent's application to join a defendant in the proceedings was permissible under the Family Law Act and whether the application should be granted. The court had to consider whether there were any substantive reasons to allow the application and whether the delay in making the application would cause any injustice to the parties involved.

The court found that the application to join a defendant was not permissible under the Family Law Act. It was held that there were no substantive reasons to allow the application, and the delay in making the application would cause injustice to the parties. The court also noted that the respondent had not provided any evidence to support their application. Consequently, the application was dismissed.

No further orders were made by the court.

Orders