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Rigby & Kingston

Rigby & Kingston

Case [2020] FamCA 415 26 May 2020

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FAMILY COURT OF AUSTRALIA

RIGBY & KINGSTON AND ORS

[2020] FamCA 415

FAMILY LAW – PRACTICE AND PROCEDURE – Joinder – Where various third party respondents, joined to the proceedings by the husband pursuant to r 6.03 of the Family Law Rules 2004 (Cth), make an application to be removed as parties to the proceedings – Where they contend that the husband has failed to establish the essential requirements to justify the joinder of a party - Where the husband was ordered to file an Amended Initiating Application and a Points of Claim document particularising the precise orders sought against each of the third party respondents as well as pleading the fact and law relied upon for the relief sought – Where the husband has failed to comply with that order – Where the husband contends that he has been prevented from properly particularising his claim by a lack of disclosure from the third party respondents – Where it is improper to join a party for the sole purpose of obtaining disclosure – Where the Court finds that the identified third party respondents were joined for an improper purpose and those respondents will be removed as parties to the proceedings – Where the obligations of the remaining third party respondents will be stayed pending the husband’s compliance with the order to particularise his case.

FAMILY LAW – COSTS – Circumstances justifying order – Where the third party respondents seek indemnity, or alternatively, party to party costs against the husband for costs incurred in relation to a hearing in December 2019 – Where the circumstances justify the making of a costs order but are not so exceptional as to warrant an award of costs on an indemnity basis – Where the husband is ordered to pay costs fixed in the sum of $25,000 to the third party respondents, payable within 7 days of the conclusion of the substantive proceedings.

FAMILY LAW – EVIDENCE – Application to strike out – Where the wife seeks to strike out particular paragraphs of the husband’s affidavit on the ground that they are not relevant to the issues listed for the first series of trial dates – Where the husband resists the application – Where the paragraphs objected to are struck out.

FAMILY LAW – LITIGATION FUNDING – COSTS - Where the husband seeks further litigation funding from the wife in relation to the husband’s legal costs of responding to the application brought by the third party respondents – Where the circumstances do not justify an order for the wife to pay the husband’s costs of pursuing a claim against third parties, particularly where the basis for that claim is yet to be particularised – Where the application is dismissed.

Family Law Act 1975 (Cth), Pt VIIIAA, s 117
Family Law Rules 2004 (Cth), r 6.02, r 6.03, r 10.12(d), r 19.08(3), r 19.18

Adsteam Building Industries Pty Ltd v Old Cement and Lime Co (Unreported, Supreme Court of Queensland, McPherson J, 16 July 1984)

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

AGLC: Rigby & Kingston [2020] FamCA 415
Case: [2020] FamCA 415
Decision Date: 26 May 2020

CaseChat Overview and Summary

In proceedings before Carew J of the Family Court of Australia, the husband had joined various third-party respondents to the proceedings. These third-party respondents applied to be removed as parties, arguing that the husband had failed to meet the essential requirements for joinder. The court had previously ordered the husband to file an Amended Initiating Application and Points of Claim, detailing the specific orders sought against each third party and the legal and factual basis for those claims. The husband had not complied with this order, asserting that a lack of disclosure from the third parties prevented him from particularising his claims, and that it was improper to join a party solely for the purpose of obtaining disclosure.

The court was required to determine whether the joinder of the third-party respondents was justified, whether the husband had complied with the court's previous orders, and whether the third-party respondents should be removed as parties. Additionally, the court considered applications for costs by the third-party respondents, an application by the wife to strike out certain paragraphs of the husband's affidavit, and the husband's application for further litigation funding from the wife.

Carew J found that the identified third-party respondents had been joined for an improper purpose and ordered their removal from the proceedings. The obligations of any remaining third-party respondents were stayed pending the husband's compliance with the order to particularise his case. The court also ordered the husband to pay the third-party respondents' costs fixed at $25,000, payable within seven days of the conclusion of the substantive proceedings, finding that while circumstances justified a costs order, they were not exceptional enough for indemnity costs. The wife's application to strike out paragraphs of the husband's affidavit was granted, with the objected-to paragraphs being struck out as irrelevant to the issues listed for trial. Finally, the husband's application for further litigation funding from the wife was dismissed, as the court found no justification for the wife to pay the husband's costs of pursuing claims against third parties, particularly when those claims remained unparticularised.

Orders