SCVG and Estate of KLD (deceased) & Anor

[2020] FamCA 337

FAMILY COURT OF AUSTRALIA

SCVG & ESTATE OF KLD (DECEASED) AND ANOR [2020] FamCA 337

FAMILY LAW – PRACTICE AND PROCEDURE – orders for pleadings – striking out of pleadings – application to amend pleadings in relation to struck out aspects

Family Law Act 1975 (Cth)

APPLICANT: Mr SCVG

1st RESPONDENT: Estate of Ms KLD (Deceased)

2nd RESPONDENT: Child Support Registrar

FILE NUMBER: SYC 5956 of 2016

FILE NUMBER: SYC 4380 of 2008

DATE DELIVERED: 7 May 2020

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 24 April 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

COUNSEL FOR THE 1ST RESPONDENT: Mr Stenhouse

SOLICITOR FOR THE 1ST RESPONDENT: Macphillamy's

SOLICITOR FOR THE 2ND RESPONDENT: No appearance

Orders

1. The Applicant is permitted to amend the pleadings in relation to the Justice Cronin and Judge Scarlett matters in accordance with his applications in a case filed on 26 March 2020 and 3 April 2020.

2. The pleadings are taken to have been so amended.

3. In the event that the Respondent seeks that the amended aspects of the proceedings be struck out the Respondent is to file written submissions setting out what is sought to be struck out and the basis for such by 4pm on 20 May 2020.

4. In the event that the Respondent files submissions as set out above, and in the event that the Applicant seeks to resist the striking out, the Applicant is to file and serve written submissions in relation to such by 4pm on 29 May 2020.

5. The issue of striking out will then be dealt with on the written submissions.

6. The Respondent’s costs of the application to amend the pleadings are reserved.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym SCVG & KLD has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: SYC 5956 of 2016 & SYC 4380 of 2008

Mr SCVG 

Applicant

And

Estate of KLD (Deceased)

Respondent

And

Child Support Registrar 

Second Respondent

REASONS FOR JUDGMENT

1. This application concerns the amendment of pleadings filed by the Applicant in these proceedings, following the striking out of a number of those pleadings.  As is set out elsewhere, the particular nature of the subject matter of the Applicant’s applications, seeking the setting aside of various judgments on the basis that they were procured by fraud, called for a proper identification of the Applicant’s case by means of pleadings.

2. The pleadings filed were the subject of objection by the Respondent, and a number of the pleadings were struck out by judgment of 20 March 2020.

3. The Applicant now seeks to amend and substitute pleadings for a portion of those previously struck out.  Those portions relate to the claims known as the Cronin J matter and the Judge Scarlett matter.  The applications are opposed.

4. In relation to the Cronin J claim the Applicant seeks to replace the struck out [34]. The previous [34] alleged some involvement by Ms KLD’s solicitor in the fraud alleged against Ms KLD. Paragraph 34 was struck out due to both its generality and its failure to connect the fraud alleged against Ms KLD and the conduct alleged against the solicitor. The replacement [34] deals with the same subject matter.

5. In relation to the Judge Scarlett matter [12b] was struck out due to its incapacity to support the proposition pursued by the Applicant as to the particular value of property.  The replacement [12b] pursues a similar issue.

6. The opposition to the re-pleading was reliant upon a number of factors:

   a)That the re-pleading causes substantial delay, particularly as it will result in a second round of objections to the pleadings;

   b)That the re-pleading constitutes a new claim, which may constitute a separate cause of action entirely;

   c)That the re-pleadings do not deal with the faults identified when the previous versions were struck out;

   d)That costs are an insufficient remedy given the ongoing inconvenience and stress occasioned by the litigation;

   e)That the process of the litigation has involved the meeting of application after application.

7. It may be thought of as unremarkable that following the striking out of pleadings an attempt might be immediately made to re-plead in an acceptable form.

8. It should be noted that, despite the age of the proceedings, and the slow progression of the proceedings, the application to amend still arises preceding the making of an order for the Respondent to file a document in the nature of a defence, which was identified as the next procedural step in the proceedings.

9. The fact that the applications contain the re-pleading minimises delay to the proceedings. The re-pleading may be accompanied by directions to promptly deal with further objection to their content, which will deal with the issues of further delay and their purported inadequacy in addressing the deficiencies in the previous version.

10. The subject matter of the re-pleadings reflect that which was previously struck out.  They do not appear to identify a new cause of action which in any event, at this stage of the proceedings, would not necessarily be good reason to refuse the re-pleading in any event.

11. It may be accepted that the proceedings have so far involved numerous applications.  That bare fact does not justify the refusal to allow this re-pleading.

12. On balance, it is in the interests of justice to allow the applications to re-plead.  It may then be said that the Applicant has received a proper opportunity to plead his case, with the benefit of being able to reflect upon the reasons why various aspects were struck out.

13. While the Respondent sought orders restraining the filing of further applications in relation to the various fraud matters without leave, a sufficient justification has not been advanced to justify such a course and it will be refused.

14. The Respondent also sought costs in a sum certain.  Material was not filed to set an amount in a sum certain.  In the alternative the Respondent sought that the costs be reserved and an order will be made to this effect.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 7 May 2020.

Associate: 

Date:  7 May 2020