McShane v Bennett (Ruling)
[2011] VCC 288
•21 February 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
COMMERCIAL
FAMILY PROPERTY DIVISION
Case No. CI-10-05159
| KATE SANDRA McSHANE | Plaintiff |
| v | |
| TREVOR GRAHAM BENNETT | Defendant |
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| JUDGE: | HIS HONOUR JUDGE MISSO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 10 February 2011 |
| DATE OF RULING: | 21 February 2011 |
| CASE MAY BE CITED AS: | McShane v Bennett (Ruling) |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 288 |
RULING
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Catchwords: DOMESTIC PARTNERSHIP – Relationships Act 2008 – application to dismiss the proceeding – failure to disclose a cause of action – alternatively, application to strike out the statement of claim – statement of claim embarrassing – order of the costs against the solicitors for the plaintiff
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Stanley | Bayside Solicitors |
| For the Defendant | Ms M Smallwood | Ryan Carlisle Thomas |
| HIS HONOUR: |
Introduction
1 The plaintiff commenced a proceeding in the Court by Writ filed 12 November 2010. It alleged, among other things, that she was involved in a domestic relationship with the defendant from March 2004 until 2007, as defined in the Relationships Act 2008 (“the Act”).
2 The defendant filed a conditional appearance on 14 December 2010. By his Defence dated 20 December 2010, he raised two jurisdictional defences. The first is that the plaintiff had not obtained leave to bring the proceeding given that it was filed in excess of two years following the separation. The second, that there were significant separations between its commencement and cessation: the domestic relationship commenced in March 2004, and finally ceased in May 2007.
3 By a Summons filed 21 December 2010, the defendant applied to have the plaintiff’s proceeding either dismissed or to have the Statement of Claim struck out. The Summons came on for hearing on 10 February 2011.[1]
[1] The application was addressed by Counsel as an application for summary judgment pursuant to Section 62 of the Civil Procedure Act 2010.
4 Ms M Smallwood appeared for the defendant and Mr J Stanley appeared for the plaintiff. Both Counsel informed me that I was to determine the questions raised by the Summons on the pleadings and the affidavits filed by the plaintiff and the defendant.
5 The defendant filed an affidavit sworn 20 December 2010 in support of the relief sought by the Summons. The plaintiff filed an affidavit on the morning of the hearing, which was sworn on 9 February 2011, opposing the relief sought by the Summons.
The Pleadings
6 The Statement of Claim does not plead what is required to disclose a cause of action under the Act.
7 A pleading must disclose, firstly, that there was a domestic relationship; secondly, the facts which are sufficient to engage the jurisdiction of the Court by reference to the provisions of the Act, and the basis upon which an order is applied for by way of alteration of property interests between the parties.
8 The serious deficiency in the Statement of Claim is that the plaintiff does not plead the contributions she made, either of a direct or indirect kind, to the acquisition, conservation or improvement of any property of the parties or the financial resources of the parties.[2] Indeed, the only flirtation with anything of that sort are particulars which refer to the plaintiff pooling her wages with those of the defendant to pay expenses, the plaintiff paying bills, and the plaintiff making a significant contribution as a homemaker.
[2] Section 45(1)(a)
9 The particulars just referred to are sub-joined to paragraph 7, which pleads:
“Throughout the relationship the plaintiff and the defendant were in paid
employment.”
10 The particulars bear no relationship to the pleadings to which they are said to be particulars. They are not particulars to a pleading alleging that the plaintiff made direct and indirect contributions of a particular kind.
11 In any event, even if there was a pleading of direct and indirect contributions made by the plaintiff, the particulars are bald and are undeserving of the description that they are particulars.
12 Paragraph 9 pleads that the plaintiff has acquired an equitable interest in the property registered in the name of the defendant, where the plaintiff and the defendant allegedly lived during their domestic relationship.
13 The provisions of the Act do not refer to the acquisition of equitable interest if there is a domestic partnership and there were direct and indirect contributions made by a party to the acquisition, conservation or improvement of the property of the parties, or the financial resources of the parties.
14 The pleader of the Statement of Claim has confused the provisions of the Act with the pleading of a constructive trust. In the prayer for relief, the plaintiff applies for a declaration that the defendant holds the whole or part of the property on trust for her; however, there is no pleading of a constructive trust to support the claim for such relief.
15 The particulars sub-joined to paragraph 10 are deserving of the severest rebuke to the pleader. The particulars refer to negotiations conducted between the plaintiff and the defendant, and the substance of an agreement that was allegedly arrived at through those negotiations.
16 It is fundamental to legal practice that negotiations undertaken bona fide for the purpose of compromise are without prejudice and are not to be divulged, and certainly not in a pleading, save perhaps in some most exceptional and peculiar circumstance.
17 There is a fundamental issue raised by the evidence. The plaintiff pleaded that there was a domestic relationship which commenced in March 2004 and ceased in 2007. The pleading is vague. It does not permit the defendant to obtain an understanding of the length of the relationship alleged. If a calculation is made from March 2004 to the beginning of 2007, then the plaintiff is at least alleging a relationship of thirty-four months.
18 In order to found jurisdiction, the plaintiff must satisfy the Court of the matters referred to in section 42(2) of the Act. One of those matters is whether the domestic partners lived together in a relationship for a period of at least two years: subsection (2)(c).
19 Despite pleading a domestic relationship of at least thirty-four months, the plaintiff conceded in her affidavit that there was one period of separation from mid-January 2005 to mid-May 2005, which is a period of five months. Therefore, her pleading in paragraph 1 of the Statement of Claim is patently wrong. No explanation was given by the plaintiff explaining why the pleading of those facts is wrong.
20 The defendant alleges that the domestic relationship commenced in March 2004, and that there were two periods of separation from November 2004 to April 2005, and from November 2005 to October 2006, a period totalling twenty-one months.
21 The balance of the affidavits sworn by both parties deal with the direct and indirect contributions made by the plaintiff. Essentially, the defendant denies that the plaintiff made any contributions of any particular kind. In contrast to her Statement of Claim, the plaintiff claims to have made such contributions in paragraph 5 of her affidavit, not only relevant to the running of the household, but also in connection with a business conducted by the defendant.
22 It is trite to say that despite what the plaintiff says in her affidavit, it cannot cure the deficiencies in the Statement of Claim.
Counsels’ Submissions
23 Ms Smallwood submitted that on the plaintiff’s evidence there was one domestic relationship between March 2004 and January 2005, being a period just short of ten months, and then a second domestic relationship from mid- May 2005 to early January 2007. Neither exceeded two years, and therefore the Court has no jurisdiction to entertain the proceeding and hence judgment should be entered for the defendant against the plaintiff.
24 In paragraph 3 of her affidavit, the plaintiff described the period between mid- January 2005 and mid-May 2005 as a separation, not the cessation of the domestic relationship, and then added:
“… such that we lived together for a total period of approximately 34
months.”
25 The inference that is capable of being drawn from that evidence is that the plaintiff is saying that the separation did not amount to a cessation of the domestic relationship, but an interruption to it, and that there was a resumption of the domestic relationship in mid-May 2005.
26 As a matter of commonsense and human experience, it is not unusual that husbands and wives and domestic partners separate and then resume cohabitation. The question whether the period of separation amounts to a cessation of a domestic relationship is a question of fact, and one to be determined at the trial of the proceeding, or as a separate question to be tried independently of the principal proceeding.
27 I am not prepared to conclude that the separation amounted to a cessation of the domestic relationship on the evidence before me, and that what occurred in mid-May 2005 was the commencement of a separate domestic relationship.
28 Ms Smallwood submitted that the plaintiff should not be permitted to continue with the proceeding because she has failed to obtain the leave of the Court to bring the proceeding out of time. Section 43(2) provides:
“A court may grant leave to a domestic partner to apply for an order at
any time after the end of the period referred to in subsection (1) … .”
29 It is clear enough to me that the legislature intended that an application be made granting such leave before an order can be made, but not prescribing the time when the application must be made. It follows that a proceeding can be commenced, and that application for leave can be made at any time, including at the trial, however, leave must be granted before any orders can be made altering property interests.
Conclusion
30 The Civil Procedure Act 2010 provides that a defendant in a civil proceeding may apply for summary judgment on the basis that the claim has no real prospect of success: Section 62.
31 It is unnecessary for me to determine what “no real prospect of success” means, because I have decided that I should strike out the plaintiff’s Statement of Claim and order that the plaintiff have leave to file and serve an amended statement of claim.
32 It appears to me that despite the poor drafting of the Statement of Claim, that it, together with the matters deposed to by the plaintiff in her affidavit, suggests that the plaintiff has a cause of action which, if properly pleaded, may be consistent with an arguable case.
33 However, I consider the quality of the plaintiff’s Statement of Claim to be so poor that the draughtsman is deserving of a severe rebuke for filing a statement of claim of that kind.
34 The orders I make in this application are as follows:
(1) The plaintiff’s Statement of Claim endorsed on the Writ filed 12
November 2010 is struck out.
(2) The plaintiff has leave to file and serve an amended statement of claim
on or before 4.00 pm on 1 March 2011.(3) The defendant has leave to renew its application to apply for summary judgment at the Directions Hearing scheduled for 10 March 2011. If he intends to do so, he must provide written notice to the plaintiff and to the Associate to his Honour Judge Misso on or before 4.00 pm on 8 March 2011. (4) The solicitors for the plaintiff personally pay all of the costs not unreasonably incurred by the defendant (on an indemnity basis) relevant to the Summons, heard on 10 February 2011, and the costs thrown away by reason of the necessity for the defendant to file and serve an amended defence to the proposed amended statement of claim.
(5) The solicitors for the plaintiff must provide a copy of this Order to the
plaintiff as soon as practicable after it is received by them.(6) If the defendant makes no further application for summary judgment, then the plaintiff and the defendant must submit procedural orders for the further carriage of the proceeding or before 4.00 pm on 17 March 2011, and in the absence of agreement regarding appropriate procedural orders, the plaintiff and the defendant must appear at a Directions Hearing at 9:30 am on 24 March 2011.
(7) Liberty to apply.
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