Hampton & Farley & Ors

[2012] FamCA 871

FAMILY COURT OF AUSTRALIA

HAMPTON & FARLEY AND ORS [2012] FamCA 871

FAMILY LAW ─ Application for leave to intervene pursuant to s 92 of the Family Law Act 1975 (Cth) ─ Where the Court had raised with the parties on an earlier occasion the prospect of third party interests being potentially relevant to the determination of the proceedings between the applicant and the respondent ─ Where the complaint that the application for leave to intervene should have been undertaken far earlier is valid, however the Court is satisfied that allowing the application does not cause any injustice to the applicant ─ Where in the circumstances, it is in the interests of justice that the application for leave to intervene be granted ─ Application for leave to intervene granted.

Family Law Act 1975 (Cth) s 92

APPLICANT: Ms Hampton

FIRST RESPONDENT: Mr Farley Snr

SECOND RESPONDENT: Mr Farley Jnr

THIRD RESPONDENT: Farley and Son Pty Ltd

FILE NUMBER: MLC 116 of 2011

DATE DELIVERED: 11 September 2012

PLACE DELIVERED: Dubbo

PLACE HEARD: Dubbo

JUDGMENT OF: Coleman J

HEARING DATE: 11 September 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Nicholson

SOLICITOR FOR THE APPLICANT: Commins Hendriks

COUNSEL FOR THE FIRST RESPONDENT: Mr Kenny

SOLICITOR FOR THE FIRST 

RESPONDENT:

Campbell Paton & Taylor

COUNSEL FOR THE SECOND &

THIRD RESPONDENT:

Mr Laughton SC

SOLICITOR FOR THE SECOND &

THIRD RESPONDENT:

Maclarens Lawyers

Orders

1. That pursuant to s 92 of the Family Law Act 1975 (Cth) Mr Farley Jnr and Farley and Son Pty Ltd are granted leave to intervene as the second and third respondents in the proceedings.

2. That the hearing be adjourned to commence at 10 am on Monday 17 December 2012 in the Sydney Registry for 5 days.

3. That by 10 November 2012 the experts providing any expert opinion evidence which is controversial confer, and by 30 November 2012, provide a countersigned memorandum setting out each and every point of disagreement, the basis of each such point of disagreement and the comparable sales relied upon by each expert in support of his or her expert opinion.

4. That leave be granted to all parties to inspect the file.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hampton & Farley 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 DUBBO

FILE NUMBER: MLC 116 of 2011

Ms Hampton

Applicant

And

Mr Farley Snr

First Respondent

And

Mr Farley Jnr

Second Respondent

And

Farley and Son Pty Ltd

Third Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. As foreshadowed, the Court is disposed to grant leave, under section 92 of the Family Law Act 1975 (“the Act”), for Mr Farley Jnr and Farley and Son Pty Ltd to intervene in the proceedings. Having done so, they become, respectively, the second and third respondents. The reasons for so ordering are essentially and inelegantly expressed as follows.

2. On 31 August 2012, Mr Farley Jnr, applied for orders, the effect of which, if successful, would be to materially impact upon what is asserted by Ms Hampton (“the applicant”), to be the assets of the former relationship of herself, and Mr Farley Snr, (“the respondent”).

3. For convenience, and to illustrate the foregoing, the Court refers to page 9, headed “Balance Sheet”, of Counsel for the applicant wife’s outline of case document. The first three items appearing in that document, it is readily apparent, comprise the overwhelming bulk of what the applicant asserts is the property of her former relationship with the respondent. As the transcript of the submissions of Senior Counsel for Mr Farley Jnr would confirm, by reference to the first three items on page 9 of Counsel for the applicant’s outline document, it is contended by Mr Farley Jnr that, whilst the legal ownership of the assets there referred to may be conceded to be as suggested, or if not conceded, not seriously disputed to be as suggested, Mr Farley Jnr asserts that, by virtue of the application of equitable principles, the respondent does not beneficially own any of the first two items, and as the Court understands the submission, a significant proportion of the third, being an interest in a superannuation fund.

4. If Mr Farley Jnr is permitted to agitate his claim, and is successful in so doing, it is readily apparent that, on the applicant’s own case, the pool of property potentially available for division between the applicant and the respondent would become of extremely modest proportions.

5. Prima facie, when regard is had to the terms of the relief sought by the applicant, as outlined under the heading “Orders Sought by the De Facto Wife” at page 13 and following of her learned Counsel’s outline of case document, in a number of respects, which were identified by Senior Counsel for Mr Farley Jnr, if not directly then at least indirectly, and even if only in an enforcement capacity, the relief sought by the applicant has the potential to adversely affect the interests of Mr Farley Jnr.

6. In those circumstances, the arguments in favour of granting leave to intervene to resist the applicant’s claim, and as part of that resistance, to agitate the claim articulated in the application filed 31 August 2012 pursuant to the Court’s accrued jurisdiction, the interests of justice suggest that Mr Farley Jnr should be granted leave to intervene, and become the second respondent. The issue, however, is not necessarily as straightforward as the narrative thus far might imply.

7. In March 2012, at a directions hearing, from recollection although nothing turns upon the accuracy or otherwise of the recollection, the Court raised with the parties the prospect of third party interests being potentially relevant to the determination of the proceedings between the applicant and the respondent. An order was made that any intervention application be filed and served by the end of June 2012.

8. Subject to any matters which had not then emerged or needed to then emerge, it appears that the first suggestion of intervention by Mr Farley Jnr may have occurred on or about 17 August 2012, and again, subject to being referred to any material not known of by the Court, it does not appear that until 31 August 2012, a formal application and pleading was filed on behalf of Mr Farley Jnr.

9. It should be recorded that on or about 17 August 2012 the Court was requested to grant a telephone or similar directions listing for this potential issue to be agitated. The Court was unable to accede to that request by virtue of the listing of other cases but with hindsight, given the nature and complexity of the issue, it would have been undesirable to have sought to have dealt with it in the summary fashion which could only have been possible at such a listing.

10. The point is raised by learned Counsel for the applicant, that the application for leave to intervene, and to seek the relief which Mr Farley Jnr now seeks to agitate, should have been undertaken far earlier. That is a valid complaint but, as Counsel for the applicant, with respect, sensibly acknowledged, the broader interests of justice have to be considered, and those interests involve, on the one hand, the opportunity for a party potentially adversely impacted by orders of the Court to be heard, as against the additional costs incurred by, in this case, the applicant and/or prejudice to the applicant if the application succeeds.

11. The Court is satisfied that allowing the application by Mr Farley Jnr to intervene need not be accompanied by or occasion the applicant an injustice.  That is so for two reasons.  The first is that on such evidence as there is before the Court in relation to the financial circumstances of Mr Farley Jnr, if it be ultimately found to be warranted, any costs order which might be made against him would appear likely to be able to be satisfied or perhaps, more relevantly, the evidence before the Court does not suggest that if the circumstances ultimately resulted in a costs order being made against Mr Farley Jnr, that a costs would be unlikely to be satisfied. That is a relevant consideration to the exercise of discretion to grant leave to intervene.

12. The second matter is that, as foreshadowed to all Counsel, the Court is proceeding sequentially with these matters, if it transpires that the late raising of Mr Farley Jnr’s causes of action potentially prejudices the applicant in terms of meeting those claims, the Court has the ability, on terms, to grant an adjournment of the proceedings so that, on the one hand, the opportunity to be heard is afforded to Mr Farley Jnr, whilst on the other hand, so doing does not place the applicant in a position where she is disadvantaged in terms of costs if it ultimately is found that she should have her costs of that aspect of the proceedings, nor does it mean that she will be prejudiced in terms of meeting the substance of the claims which Mr Farley Jnr seeks to agitate.

13. As suggested to learned Counsel for the applicant and again, with respect, as the Court apprehends, sensibly acknowledged by him, to decline, in the circumstances outlined, to grant leave to intervene would be to potentially taint the proceedings in a way which could not subsequently be remedied. Why that is so, can be simply stated. As the orders sought by the applicant reveal, directly or indirectly, if that relief was granted, on whatever jurisdictional basis it were granted, the interests of Mr Farley Jnr would be potentially affected.

14. To proceed in circumstances where he was denied the opportunity to be heard in opposition to orders of that kind being made would, in the Court’s view, almost certainly provide, before a word of evidence had been heard, grounds for appellate intervention on the part of Mr Farley Jnr. The terms of s 79(10) of the Act support so concluding.

15. For the foregoing reasons, the Court grants leave to Mr Farley Jnr to intervene in the proceedings pursuant to section 92 of the Act, and further grants leave to make an application in the proceedings in the terms of the application filed 31 August 2012. Mr Farley Jnr will be referred to herein after as the second respondent.

16. Granting leave to file the application is not to be taken as a ruling that it falls within the Court’s jurisdictional competence, it simply places it before the Court so that whatever argument there is about that, if there is any, does not proceed in a vacuum.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman delivered on 11 September 2012.

Associate:

Date: 16.10.2012