Stopford Malloy & Malloy

Case [2021] FamCA 100


FAMILY COURT OF AUSTRALIA

Stopford Malloy & Malloy [2021] FamCA 100

File number(s): ADC 2595 of 2015
Judgment of: HARPER J
Date of judgment: 8 March 2021
Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE –Joinder of parties –– Statutory interpretation – Rule 6.03(2) and (3)(b) of the Family Law Rules 2004 (Cth) – Where Wife joins third parties by filing Amended Initiating Application pursuant to Rule 6.03(3)(2) – Where no compliance with Rule 6.03(3) – Whether joinder of third parties pursuant to Rule 6.03(2) was a “nullity” – Whether affidavit required by Rule 6.03(3)(a) is “mandatory” – Rules to be construed consistently with the main purpose in Rule 1.04 – Consideration of Rules 6.02, 6.03, 6.04, 11.10.

FAMILY LAW – PRACTICE AND PROCEDURE – Statutory interpretation – Consequences of non-compliance with Rule 6.03 – Whether the third parties should be removed from the proceedings pursuant to Rule 6.04 – Summary dismissal – Whether proceedings against third parties should be dismissed pursuant to Rule 11.02(2) – Consideration of Rules 10.12 and 11.02(2) – Whether relevant to consider prospects of success – Discretion to dispense with the requirements of rule 6.03 nunc pro tunc – Application dismissed – Costs reserved.

Legislation:

Family Law Act (1975) Cth s 106B

Family Law Rules 2004 (Cth) rr 1.04, 1.06,1.07, 6.02, 6.03,6.04, 10.12, 11.02, 11.10.

Federal Court of Australia Act 1976 (Cth) s 31A)

Cases cited:

 B Pty Ltd & ors & K & Anor [2008] FamCAFC 113

Cao & Cao [2018] FamCAFC 252

Chifley & Ha [2017] FamCA 683

Deveigne & Anor v Askar (2007) 239 ALR 370

El Saeid & Masih and Ors [2015] FamCA 516

Greig & Duff as Liquidators of Australian Building Industries P/L (in liq) v Australian Building Industries P/L (in liq) & Anor [2003] QCA 298

Hancock Family Memorial Foundation Ltd v Fieldhouse [No 3] [2010] WASC 223

Hunter Resources Ltd v Melville (1988) 164 CLR 234

Jamieson v R (1993) 177 CLR 574

John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1

Kelly & Lomax and Anor [2013] FamCA 496

MacFoy v United Africa Co Ltd [1962] AC 152

Malloy & Stopford Malloy [2019] FamCA 986

Malloy & Stopford Malloy [2020] FamCA 506

Malloy & Stopford Malloy and Ors [2020] FamCAFC 270

Malloy and Ors & Stopford Malloy [2017] FamCAFC 204

Patel and Noora [2019] FCWA 260

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

R-v- T [2020] WASCA 109

Re Pritchard [1963] Ch 502

Riemann & Riemann and Ors (No 3) [2017] FamCA 911

Sigley & De Santis (No 2) [2019] FamCA 596

Spencer v The Commonwealth (2010) 241 CLR 118

State of NSW v Kable (2013) 252 CLR 118

Stopford Malloy & Malloy (No 3) [2016] FamCA 931

Storrer & Storrer and Ors [2012] FamCA 448

Wayne & Dillon and Anor (2008) 40 Fam LR 543

Zhou & Wei [2019] FamCA 194

Number of paragraphs: 81
Date of hearing: 25 January 2021
Place: Sydney
Counsel for…

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AGLC
Stopford Malloy & Malloy [2021] FamCA 100
Case
[2021] FamCA 100
Decision Date

CaseChat Overview and Summary

In the matter of DD Pty Ltd and Mr Q Malloy and The Malloy Group (applicants) against Ms Stopford Malloy (respondent), Harper J of the Federal Circuit and Family Court of Australia considered an application concerning the joinder of third parties to family law proceedings. The wife had sought to join third parties by filing an Amended Initiating Application, but it was contended that this joinder did not comply with the requirements of Rule 6.03(3) of the Family Law Rules 2004 (Cth).

The central legal issues before the court were whether the joinder of the third parties, effected without strict adherence to Rule 6.03(3), was a nullity, and whether the affidavit required by Rule 6.03(3)(a) was mandatory. The court also had to determine the consequences of any non-compliance, specifically whether the third parties should be removed from the proceedings under Rule 6.04 or whether the proceedings against them should be summarily dismissed pursuant to Rule 11.02(2).

Harper J reasoned that the Family Law Rules should be construed consistently with their main purpose as outlined in Rule 1.04. The court considered the interplay between Rules 6.02, 6.03, 6.04, and 11.02(2). His Honour determined that the requirements of Rule 6.03(3) could be dispensed with *nunc pro tunc*, meaning the court had the discretion to validate the joinder retrospectively. Consequently, the application to remove the third parties or dismiss the proceedings against them was dismissed.

The court ordered that the requirements of Rule 6.03(3) of the Family Law Rules 2004 (Cth) be dispensed with *nunc pro tunc* in relation to the Amended Initiating Application filed on 10 April 2019. The application filed by the respondents seeking dismissal of the proceedings against the third parties was dismissed, and all questions of costs related to that application were reserved.

Orders

Orders of the court

ADC2595/2015

BETWEEN:

DD PTY LTD (ACN … )

First Applicant

MR Q MALLOY

Second Applicant

THE MALLOY GROUP

Third Applicant

AND:

MS STOPFORD MALLOY

Respondent

ORDER MADE BY:

HARPER J

DATE OF ORDER:

8 MARCH 2021

THE COURT ORDERS THAT:

1. The requirements of Rule 6.03(3) of the Family Law Rules 2004 (Cth) be dispensed with nunc pro tunc in relation to the Amended Initiating Application filed on 10 April 2019.

2. The Application in a Case filed on 28 August 2020 by the Second to Fourth Respondents be dismissed.

3. All questions of costs of and incidental to the Application in a Case filed on 28 August 2020 be reserved.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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