Holden & Holden
[2023] FedCFamC1F 331
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Holden & Holden [2023] FedCFamC1F 331
File number(s): CSC 699 of 2022 Judgment of: JARRETT J Date of judgment: 3 May 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of litigation guardian – Where initiating application sought interlocutory order for the appointment of a litigation guardian – Where there is a dispute concurrently litigated in the Supreme Court of Queensland whether the proposed litigation guardian was the manager of the applicant’s affairs – Where the applicant died prior to the appointment of a litigation guardian – Whether the proceedings have been properly commenced Legislation: Family Law Act 1975 (Cth) ss 79, 79(8)
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 66
Federal Court of Australia Act 1976 (Cth) s 51
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr 3.12(1), 3.13(1), 3.14, 3.15(1), 3.15(2), 3.15(3), 3.16(1), 3.16(5), 5.02(2)(b)
Powers of Attorney Act 1998 (Qld) ss 111A, 114
Cases cited: Babbit & Babbit [2011] FamCAFC 151
Balloqui v Balloqui [1963] 3 All ER 989
BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2014) 226 FCR 240
Cusa & Cusa (1986) FLC 91-721
Danine & Drew [2008] FamCA 1169
Emanuele v Australian Securities Commission and Ors (1996-1997) 188 CLR 114
Ex parte Brocklebank; In re Brocklebank [1857] 6 Ch.D 358
Forster & Forster (No 3) [2012] FamCAFC 214
Frost (dec’d) v Whooten [2018] FamCAFC 177
Layton & Layton [2019] FCWA 145
Mewburn v Mewburn (1934) 51 WN (NSW) 170
Price & Underwood (Divorce Appeal) (2009) 41 Fam LR 614
Price & Underwood [2008] FamCA 267
Public Guardian (Queensland) & Beasley and Anor (No 2) (2015) 54 Fam LR 153,
Division: Division 1 First Instance Number of paragraphs: 45 Date of last submission/s: 6 April, 2023 Date of hearing: 6 April, 2023 Place: Brisbane Counsel for the Applicant: Mr Fellows Solicitor for the Applicant: Hadley Family Law Counsel for the Respondent: Mr Looney KC Solicitor for the Respondent: Newman Family Law ORDERS
CSC 699 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: ESTATE OF THE LATE MS HOLDEN
Applicant
AND: MR HOLDEN
Respondent
order made by:
JARRETT J
DATE OF ORDER:
3 May 2023
IN ANSWER TO THE TWO QUESTIONS RESERVED FOR CONSIDERATION ON 20 MARCH, 2023 THE COURT DECLARES THAT:
1.Subject to the answer to the issue identified in [46] of the reasons for judgment delivered with these orders, no order is necessary for the appointment of Mr C as the litigation guardian for the applicant in these proceedings, unless and until the enduring power of attorney executed by the deceased on 24 February, 2022 is set aside; and
2.The proceedings commenced by the filing of an Initiating Application on 18 August, 2022 have been commenced and are valid unless and until the enduring power of attorney executed by the deceased on 24 February, 2022 is set aside.
3.Subject to any application by either party made within the next fourteen (14) days in the way prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, any question of costs be reserved to the disposition of the Initiating Application commencing these proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JARRETT J:
This is an application for property settlement under s 79 of the Family Law Act 1975 (Cth) which was listed for hearing to determine two separate questions, namely:
(a)whether any order is necessary for the appointment of Mr C as the litigation guardian for the applicant in these proceedings; and
(b)whether the proceedings have been properly commenced and are valid.
BACKGROUND
The respondent was born in 1942 and was 80 years old at the time of the hearing. The applicant was born in 1945. She passed away in 2023 prior to this hearing, but after these proceedings were commenced in 2022.
The parties were married in 1968. They had no children together. They were married for a day short of 55 years when the applicant passed away. The parties were never divorced.
The applicant and respondent lived together until late 2021. The circumstances of their separation are a matter of some dispute. It is agreed that the applicant’s health was declining. The case of the applicant (as expressed through her brother, Mr C) attributes some of her failing health to poor care by the respondent. The respondent’s case is that her deterioration was the result of the natural progression of her age. In any event, the applicant ceased living with the respondent in late 2021 and began living with her family, first her brother Mr D, then her brother Mr C, and finally in respite care.
There is no dispute that when these proceedings were commenced on 18 August, 2022 the applicant did not have sufficient mental capacity to make decisions on her own behalf. But there is a significant dispute about when the applicant lost capacity. The respondent’s evidence is that her capacity was already failing prior to separation. The applicant’s case is that she still retained legal capacity as at 24 February, 2022. This is a matter of some importance because on 24 February, 2022 by a fresh enduring power of attorney executed at that time pursuant to the Powers of Attorney Act 1998 (Qld), the applicant revoked a power of attorney executed by her in 2008 in which she had made the respondent her attorney and in the case of his inability or unwillingness to act, her brothers Mr D and Mr C. By the 24 February, 2022 document, she appointed Mr C and Mr D as her attorneys (to act successively) and excluded the respondent. She also executed a new will which is not in evidence before me. The issue of the applicant’s capacity to execute the documents that she did on 24 February, 2022 is being litigated in the Supreme Court of Queensland.
The parties agree that by reason of her lack of capacity, on 18 August, 2022 the applicant was a person in need of a litigation guardian within the definition of that phrase in r 3.12 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“FLR”). Rule 3.13(1) provides that a person who needs a litigation guardian may start a proceeding only by the person’s litigation guardian.
The following observations can be made about the initiating application filed in August, 2022:
(a)the applicant is described as “[Ms Holden]” on the second page of the cover sheet to the application;
(b)the applicant is described as “[Ms Holden] by her Litigation Guardian [Mr C]” on the front page of the Initiating Application proper;
(c)as part of the interim relief sought, the following orders are sought:
1.That pursuant to Rule 3.15 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 [Mr C] is appointed to act as litigation guardian for the wife in these proceedings.
2.That the costs and expenses of the litigation guardian be paid from the income or property of the wife [Ms Holden].
(d)In Part B of the form, the details of Ms Holden are given as the details for Applicant 1; and
(e)the application is signed by Mr C as Ms Holden’s “proposed litigation guardian”.
The respondent argues that if the February, 2022 enduring power of attorney was invalid (as he contends), Mr C did not become the litigation guardian for Ms Holden and in the absence of an order so appointing him, the proceedings advanced by Mr C for Ms Holden were never “commenced in the relevant sense”. In the absence of Mr C being a manager of the affairs of Ms Holden (the significance of which I have explained below), the respondent argues that an order for the appointment as Ms Holden’s litigation guardian, made in a separate application for that purpose, must precede the filing of the initiating application for property adjustment on Ms Holden’s behalf. Mr C argues that no order was necessary and whether or not he was the manager of the affairs for Ms Holden, the principal proceedings have been properly commenced.
THE RULES RELATING TO LITIGATION GUARDIANS
A person needs a litigation guardian in relation to a proceeding if the person does not understand the nature and possible consequences of the proceeding or is not capable of adequately conducting, or giving adequate instruction for the conduct of, the proceeding: FLR 3.12(1). It is uncontroversial that Ms Holden was a person who needed a litigation guardian when these proceedings were filed in August, 2022.
A person who needs a litigation guardian may start a proceeding only by the person’s litigation guardian: FLR 3.13(1).
A person may be a litigation guardian in a proceeding if the person is an adult, has no interest in the proceeding adverse to the interest of the person needing the litigation guardian and can fairly and competently conduct the proceeding for the person needing the litigation guardian: FLR 3.14.
FLR 3.15 sets out the procedure for the appointment of litigation guardians by the court. It is of some moment in this application and so I will set it out in full:
3.15 Appointment of litigation guardian
(1)A person may apply for the appointment, replacement or removal of a person as the litigation guardian of a party.
(2)The court may, at the request of a party or on its own initiative, appoint or remove a litigation guardian, or substitute another person as litigation guardian, in a proceeding in the interests of a person who needs a litigation guardian.
(3)A person becomes a litigation guardian if the person consents to the appointment by filing an affidavit of consent in the proceeding.
(4)The court may remove a litigation guardian at the request of the litigation guardian.
FLR 3.15 deals with two concepts. The first is the appointment of a litigation guardian. The second is when a person becomes a litigation guardian. In the context of subrules 3.15(1) and 3.15(2) it is clear that the appointment referred to in subrule 3.15(3) is an appointment that occurs under subrule (2) – that is to say, an appointment by the court. But a person who has secured such an order is not the litigation guardian for the relevant party without more. An appointment does not take effect unless and until the person appointed consents to the appointment. In practice, the consent to the appointment is usually signified at the time the application for the appointment is made. Upon the making of an order for appointment and the giving of consent in the way required by the FLR, the person appointed becomes the litigation guardian for the person in need.
Plainly, when a party becomes a person in need of a litigation guardian during pending proceedings, such an application can be made at that time. FLR 3.15(1) permits a person to apply for the appointment of a litigation guardian in the course of proceedings.
By contrast, FLR 3.16 operates in a different way. It provides:
3.16 Manager of the affairs of a party
(1)In this rule:
manager of the affairs of a party includes a person who is authorised by or under a Commonwealth, State or Territory law to conduct legal proceedings in the name of, or for, a person who needs a litigation guardian.
(2)A person who is a manager of the affairs of a party is entitled to be the litigation guardian in any proceeding to which the person’s authority extends.
(3)If, in the opinion of the court, a suitable person is not available for appointment as a litigation guardian for a person who needs a litigation guardian, the court may request that the Attorney‑General appoint a person to be a manager of the affairs of the party.
(4)The Attorney‑General may appoint, in writing, a person to be a manager of the affairs of a party for the purposes of this rule, either generally or for a particular person.
(5)A manager of the affairs of a party becomes the litigation guardian of a person who needs a litigation guardian in a proceeding if the manager of the affairs of the party files an affidavit of consent in relation to the person.
According to FLR 3.16(5), for a person to become a litigation guardian of a party two things must occur. First, the person must be the manager of the affairs of the relevant party and second, they must file an affidavit of consent in relation to the relevant party. No appointment by the order of the court is necessary to make an appointment or to in some other way confirm that the relevant person has become the litigation guardian of the party in need of one. The rule is satisfied upon the filing of the consent a person who meets the description manager of the affairs of the relevant party. The precursor to this rule has been construed in this way (Price & Underwood [2008] FamCA 267 at [2]) and described as operating as a “deeming provision”: Danine & Drew [2008] FamCA 1169 at [11], [15], [23] and [43].
The phrase manager of the affairs of a party is defined inclusively in FLR 3.16(1). If a person is authorised by or under a Commonwealth, State or Territory law to conduct legal proceedings in the name of, or for, a person who needs a litigation guardian, then that person satisfies the relevant definition. In Danine & Drew Murphy J held:
40.… that a person who holds an enduring power of attorney pursuant to the Powers of Attorney Act 1998 (Qld) is a “manager of the affairs of a party” by reason of satisfying the definition of that expression in the Family Law Rules 2004.
41.The definition is inclusive but it seems, to me in any event, that, although the wife’s sister is not appointed a “trustee” or “guardian” in terms, under a Commonwealth, State or Territory law, she is nevertheless appointed to a position of that type and one contemplated by that definition.
42.In my view s 9 of the Guardianship and Administration Act 2000 (Qld) read in conjunction with the Powers of Attorney Act 1998 (Qld) (which is what the former Act envisages) contemplates a number of ways in which parties can act in the stead of another in circumstances where that other person is disabled or incapable of doing so.
In so finding, his Honour drew upon the judgment of Watts J in Price & Underwood at [2] to the same effect, albeit in relation to a power of attorney executed pursuant to the relevant New South Wales legislation. Watts J’s decision was not disturbed on appeal: Price & Underwood (Divorce Appeal) (2009) 41 Fam LR 614.
The respondent concedes that if Mr C was the duly appointed attorney for the applicant, his affidavit filed 18 August, 2022 constituted an affidavit of consent and he would be qualified for appointment as the applicant’s litigation guardian at the commencement of the proceedings. The proceedings would in those circumstances be “commenced” and no order appointing him litigation guardian is necessary.
At the time the present proceedings were commenced, Mr C was the manager of the affairs of Ms Holden (or one of them). Upon the filing of an affidavit of consent by him to becoming her litigation guardian, he became her litigation guardian for the proceedings. Danine & Drew, Price & Underwood and Price & Underwood (Divorce Appeal) demonstrate that this is the consequence of FLR 3.16(5) on its proper construction. His appointment is presumed valid until declared otherwise: s 111A of the Powers of Attorney Act, however, if the enduring power of attorney is declared invalid, it is “void from the start”: s 114 of the Powers of Attorney Act.
But what if he was not Ms Holden’s duly appointed attorney as the respondent contends in other proceedings? In oral submissions, King’s Counsel for the respondent submitted that having a validly appointed litigation guardian is a condition precedent to commencing proceedings and if Mr C’s appointment as Ms Holden’s attorney fails, that condition precedent was not fulfilled and the principal proceedings in this court were not properly commenced and are not valid. As I understand the submissions, the respondent contends that where there is no person who may be described as a manager of the affairs of the prospective applicant who is willing to act, there must first be an order appointing a person to be the litigation guardian for that person before any proposed proceeding for relief under the Act is filed.
King’s Counsel for the respondent sought to garner support for his submissions from the text of the FLR. Rule 3.13 provides that a person who needs a litigation guardian may start a proceeding only by the person’s litigation guardian. The rule contains the following note:
Note 1:A person may apply for an interlocutory order to be appointed as a litigation guardian in relation to a prospective proceeding (see rule 5.02(2)(b)).
FLR 5.02(2)(b) permits a person to apply for an interlocutory order that does not relate to a current proceeding if they are seeking to be appointed a litigation guardian.
The rules therefore create two possible alternatives. The first is that any application to be appointed a litigation guardian must be heard prior to the initiation of proceedings, as the respondent contends. The second is that an application to be appointed a litigation guardian may be made prior to the proceedings, or as part of the proceedings by seeking an interlocutory order to be appointed as such when filing the application for final orders.
The applicant argues that FLR 3.15 is reserved for those cases where proceedings are underway and it becomes necessary for an “intervention” to occur because some event has happened where the need for a litigation guardian has emerged. Rule 3.15(2) on its terms assumes the existence of proceedings already commenced. The applicant argues that FLR 3.13 authorises the commencement of proceedings by a person styled a “litigation guardian” where the proposed applicant is in need of one. No order appointing that person as litigation guardian is necessary. The applicant argues that it was not necessary for the Initiating Application to seek an order that Mr C be “appointed” litigation guardian for Ms Holden.
I cannot accept the respondent’s submissions. Notwithstanding the rules to which I have referred above, I do not consider that an order appointing a person a litigation guardian for a putative applicant must be made before the proposed proceedings are commenced. There are many cases that have proceeded on this basis. Danine & Drew and Price & Underwood are two, although no order was necessary in those cases and in Price & Underwood the application was made orally at the commencement of the hearing before Watts J. The Full Court did not signify any difficulty with that course in Price & Underwood (Divorce Appeal). Cuza & Cuza (1986) FLC 91-721 was another case where the principal proceedings were filed before the concurrent application for the appointment of a litigation guardian was determined. I was not referred to any authority for the contrary proposition and I could find none myself. Whilst the rules relating to the commencement of proceedings on behalf of a person who is under a disability have changed from time to time since the establishment of the Family Court of Australia, the effect of the rules has remained more or less the same. There is no difference in the rules historically for present purposes and the cases dealing with the rules in their previous forms remain relevant and persuasive.
Finally, in Layton & Layton [2019] FCWA 145 a judge of the Family Court of Western Australia (deciding proceedings under the Family Law Act 1975) determined that an application for appointment of a case guardian can be made at the same time and within the same document as the commencement of substantive proceedings, relying upon Cuza & Cuza at [45].
Consistently with that approach, the applicant referred me to Public Guardian (Queensland) & Beasley and Anor (No 2) (2015) 54 Fam LR 153, in which the observation of the primary judge that “the Court need not make an appointment of a litigation guardian to enable a person to commence proceedings by their litigation guardian” was not disturbed by the Full Court of the Family Court of Australia. And there are good practical reasons for that approach. Urgent circumstances immediately spring to mind. Circumstances might be so emergent that insufficient time is available to secure an order appointing a person as a litigation guardian before a putative applicant dies and their rights evaporate.
Accordingly, I reject the respondent’s submission that assuming Mr C does not satisfy rule 3.16 it was necessary for him to apply for an order appointing him litigation guardian for Ms Holden before he could commence proceedings for her.
Nor do I consider that in circumstances where FLR 3.16 is not engaged that FLR 3.13 provides authority for the proposition that a person claiming to be the litigation guardian for a prospective applicant does not need to be appointed as such by an order of the court. I was not referred to any authority to support that proposition. Such a practice is commonplace in other jurisdictions, but in those jurisdictions a specific rule of court authorises that course, without the need for an order of appointment. There is no such provision in the FLR.
Mr C could seek an order for his appointment at the same time as he commenced the principal proceedings and expect that application to be dealt with promptly. That application has not yet been determined.
However, assuming that FLR 3.16(5) has no application, I do not accept the respondent’s argument that the principal proceedings have not been “commenced” and are not valid. The failure to commence proceedings by a litigation guardian or next friend where one is needed is a procedural defect and a mere irregularity which can be cured.
Part 3.5 of the FLR, in which the requirement for commencement of proceedings by a litigation guardian in an appropriate case is found, deals with practice and procedure. These rules do not confer jurisdiction but regulate practice and procedure where jurisdiction is otherwise invoked or sought to be invoked. FLR 3.13 concerns how proceedings must be commenced in certain circumstances. That rule does not create a cause of action or go to the relief that may be granted (cf. Emanuele v Australian Securities Commission and Ors (1996-1997) 188 CLR 114 at 127-128; 124 - 125).
The jurisdiction engaged in this case is the jurisdiction in respect of matrimonial causes. Here, no party suggested that the underlying proceedings are not in respect of a matrimonial cause. The court’s jurisdiction to determine the matrimonial cause between Ms Holden and Mr Holden was engaged by the proceedings commenced on her behalf by Mr C, albeit arguably irregularly.
On the basis of what was said by the Full Court in Frost (dec’d) v Whooten [2018] FamCAFC 177 the respondent argued that an irregularity could only be cured when the jurisdiction of the court was invoked and it was not invoked here. Whilst the principle is, with respect sound, the present case is distinguishable from Frost (dec’d) v Whooten, In that case, the Full Court held that proceedings filed after the death of the putative applicant did not engage the jurisdiction of the court because upon the death of the putative applicant, the relevant matrimonial cause ceased to exist. The proceedings simply did not engage the jurisdiction of the court and they could not be resurrected by procedural orders designed to cured procedural defects.
Factually, the present case is different. Aside from the issue of Mr C’s appointment, it was not suggested that the proceedings were not apt to engage the jurisdiction of the court. A long line of authority establishes that the failure to commence proceedings by a next friend (or a litigation guardian) where one is needed is an irregularity only, usually capable of cure. The proceedings are not considered a nullity, but, where the irregularity is not taken to have been waived for example, the proceedings are stayed until the irregularity is cured: Ex parte Brocklebank; In re Brocklebank [1857] 6 Ch.D 358; Mewburn v Mewburn (1934) 51 WN (NSW) 170; and Balloqui v Balloqui [1963] 3 All ER 989 each of which was referred to with approval in Forster & Forster (No 3) [2012] FamCAFC 214.
The respondent further argued that irregularly commenced proceedings did not invoke the jurisdiction of the court and therefore could not be cured either by appointment of a litigation guardian or by order under s 66 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) given the applicant is now deceased. However, I reject that argument. Section 66 provides:
(1)Proceedings in the Federal Circuit and Family Court of Australia (Division 1) are not invalidated by a formal defect or an irregularity, unless the Court is of the opinion that:
(a) substantial injustice has been caused by the defect or irregularity; and
(b) the injustice cannot be remedied by an order of the Court.
(2)The Federal Circuit and Family Court of Australia (Division 1) or a Judge may, on such conditions (if any) as the Court or Judge thinks fit, make an order declaring that the proceeding is not invalid:
(a) by reason of a defect that it or the Judge considers to be formal; or
(b) by reason of an irregularity.
Section 66 is in similar terms to s 51 of the Federal Court of Australia Act 1976 (Cth). In BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union (2014) 226 FCR 240 the Full Court of the Federal Court explained the background and application of s 51 in the following way:
32.The decision of the Court of Appeal reported as In re Pritchard (decd.) [1963] 1 Ch 502, seems to have led indirectly to the enactment of s 51. Prior to 1963, the Rules of the Supreme Court in England provided that:
Non-compliance with rules not to render proceedings void (O. 70 r 1)
1. Non-compliance with any of these Rules, or with any Rule of practice for the time being in force, shall not render any proceedings void unless the Court or a Judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with in such manner and upon such terms as the Court or Judge shall think fit.
In Pritchard the Court of Appeal considered the validity of an originating summons wrongly presented and sealed in a District Registry of the High Court. The rules required that an originating summons be presented and sealed in the Central Office in London. By majority (Upjohn and Danckwerts LJJ, Denning MR dissenting), the Court held that the proceedings were a “nullity” because the relevant court officer lacked authority to seal the summons. Upjohn and Danckwerts LJJ considered (at 519) that, “some proceedings are such that they are properly described as a nullity, and [O 70 r 1] cannot apply to them.”. At 523 – 524, Upjohn LJ said:
I do not think that the earlier cases or the later dicta upon them prevent me from saying that, in my judgment, the law when properly understood is that Ord. 70 applies to all defects in procedure unless it can be said that the defect is fundamental to the proceedings. A fundamental defect will make it a nullity. The court should not readily treat a defect as fundamental and so a nullity, and should be anxious to bring the matter within the umbrella of Ord. 70 when justice can be done as a matter of discretion, still bearing in mind that many cases must be decided in favour of the party entitled to complain of the defect ex debito justitiae. Lord Denning in MacFoy pointed out … that a useful test was whether the defect could be waived. I agree with that as a good common‑sense test, but I also agree with Mr. Rubin that it cannot be a completely legal test, for until you have decided whether the proceeding is a nullity, you cannot decide whether it is capable of waiver.
The authorities do establish one or two classes of nullity such as the following. There may be others though for my part I would be reluctant to see much extension of the classes. (i) Proceedings which ought to have been served but have never come to the notice of the defendant at all. This, of course, does not include cases of substituted service, or service by filing in default, or cases where service has properly been dispensed with: see, for example, Whitehead v. Whitehead … (ii) Proceedings which have never started at all owing to some fundamental defect in issuing the proceedings. (iii) Proceedings which appear to be duly issued but fail to comply with a statutory requirement: see, for example, Finnegan v. Cementation Co. Ltd. …
33.His Lordship then observed that in the case under consideration, the relevant officer had no power to issue the proceedings. Thus the proceedings had not been commenced by writ or in such other manner as was prescribed under the rules of court, as required by the relevant legislation.
34.In response to In re Pritchard, the rules were amended by adding O 2 r 1 as follows:
Non-compliance with rules (O. 2 r 1)
(1) Where, in the beginning or purporting to begin any proceedings or at any stage in the course of or in connection with any proceedings, there has, by reason of any thing done or left undone, been a failure to comply with the requirements of these rules, whether in respect of time, place, manner, form or content or in any other respect, the failure shall be treated as an irregularity and shall not nullify the proceedings, any step taken in the proceedings, or any document, judgment or order therein.
(2) Subject to paragraph (3) the Court may, on the ground that there has been such a failure as is mentioned in paragraph (1), and on such terms as to costs or otherwise as it thinks just, set aside either wholly or in part the proceedings in which the failure occurred, any step taken in those proceedings or any document, judgment or order therein or exercise its powers under these rules to allow such amendments (if any) to be made and to make such order (if any) dealing with the proceedings generally as it thinks fit.
(3) The Court shall not wholly set aside any proceedings or the writ or other originating process by which they were begun on the ground that the proceedings were required by any of these rules to be begun by an originating process other than the one employed.
35.The effect of O 2 r 1(1) was to vary the rules so that any failure to comply with a requirement of the rules, including any requirement concerning the commencement of proceedings, would not avoid those proceedings. Pursuant to O 2 r 1(2) the Court might set aside those proceedings. However, pursuant to O 2 r 1(3), the Court would not do so where the irregularity was the initiation of proceedings by a process other than that prescribed in the rules.
36.As McMurdo J pointed out in Stone v ACE-IRM Insurance Broking Pty Ltd [2004] 1 Qd R 173 at 181, a similar rule was adopted in Queensland and is still to be found in the Uniform Civil Procedure Rules at r 371. For this Court, s 51 of the FCA has been adopted to deal with the problem created by the decision in Pritchard. Unlike the English and Queensland situations, s 51 provides statutory authority which is wide enough to deal with irregularities other than in respect of compliance with the Rules. In effect, it validates proceedings notwithstanding any formal defect or irregularity, unless such defect or irregularity creates an irremediable injustice. The Court has power to declare that proceedings are not invalid by virtue of a formal defence or irregularity, but the validating effect of s 51(1) is not dependent upon the making of such a declaration. Given that the Judges may effectively dispense with compliance with the Rules, failure to comply with them can only rarely be other than a formal defect or irregularity. In the present case, assuming that the Rules require that a notice of appeal be filed after the grant of leave, non-compliance could not be more than a formal defect or irregularity. In our view this appeal validly proceeded to hearing and determination by virtue of the operation of s 51(1). It follows that the appeal was commenced prior to 1 January 2013.
The application to appoint Mr C as litigation guardian has never been determined and Ms Holden has since died. Whilst the authorities I have referred to above seem to have been decided on the basis that the appointment of a litigation guardian can be made after the commencement of the proceedings in which the appointment is to take effect, the matter is complicated by the intervening death of Ms Holden. There are statements in some of the (Cth) authorities suggestive that this may present a difficulty: Frost (Deceased) & Whooten at [3] and Danine and Drew at [27].
However, the requirement for a litigation guardian is a procedural matter and not a matter that goes to jurisdiction. In such a case, a procedural difficulty can usually be cured nunc pro tunc: Emanuele v Australian Securities Commission at 124-125, 127-128. Such an approach was taken in Babbit & Babbit [2011] FamCAFC 151 at [145] in connection with an application for a child support departure order and in Layton & Layton . Whether an appointment of a litigation guardian can or ought to be made nunc pro tunc was not the subject of any argument before me and so I refrain from any further discussion of it.
Another interesting question necessarily arises. Now that Ms Holden has died, the proceedings that have been commenced might be taken up by her legal personal representative: s 79(8) of the Act. Arguably, that might occur without the need to cure the irregularity the might arise if the enduring power of attorney is set aside. The proceedings, stayed until the irregularity is cured, might arguably be continued pursuant to s 79(8) of the Act. Notwithstanding that this impacts directly upon question 1 reserved for separate determination, it was not the subject of any argument before me and so I refrain from any further discussion of it.
CONCLUSIONS
I cannot accept the respondent’s contention that the proceedings filed in August, 2022 by Mr C for Ms Holden was not the commencement of proceedings for her for property adjustment orders pursuant to s 79 of the Family Law Act 1975 (Cth).
If the enduring power of attorney executed by the deceased in February, 2022 is not impeachable, he was her litigation guardian by force of FLR 3.16(5). If he was not, the procedure adopted was consistent with longstanding practice in this court for the commencement of proceedings coincident with an application for the appointment of a litigation guardian. At best, to fail to secure an order for the appointment as such prior to the institution of proceedings is a mere irregularity. I leave open for further argument, if necessary, whether such an order can be made nunc pro tunc in the circumstances of this case or whether such an order is necessary at all.
I answer the two questions reserved for consideration as follows:
(a)subject to the answer to the issue identified in [46] of these reasons, no order is necessary for the appointment of Mr C as the litigation guardian for the applicant in these proceedings, unless and until the enduring power of attorney executed by the deceased on 24 February, 2022 is set aside; and
(b)the proceedings commenced by the filing of an Initiating Application in 18 August, 2022 have been commenced and are valid unless and until the enduring power of attorney executed by the deceased on 24 February, 2022 is set aside.
Subject to any application by either party made within the next 14 days in the way prescribed by the FLR, any question of costs will be reserved to the disposition of the Initiating Application commencing these proceedings.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jarrett. Associate:
Dated: 3 May 2023
0
6
0