Thorpe and Thorpe and Anor
[2012] FamCA 719
•4 July 2012
FAMILY COURT OF AUSTRALIA
| THORPE & THORPE AND ANOR | [2012] FamCA 719 |
| FAMILY LAW - PRACTICE AND PROCEDURE – Part heard application by a third party for summary dismissal of wife’s claim – Whether the wife’s application is doomed to fail – Whether the wife has established a claim in equity in respect of land owned by third party - wife’s application against third party dismissed |
| Family Law Act 1975 (Cth) s 117 |
| APPLICANT: | Ms Thorpe |
| FIRST RESPONDENT: | Mr Thorpe |
| SECOND RESPONDENT: | Ms R Thorpe |
| FILE NUMBER: | CSC | 547 | of | 2009 |
| DATE DELIVERED: | 4 July 2012 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 4 July 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Sinclair |
| SOLICITOR FOR THE APPLICANT: | Bottoms English Lawyers |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr P Tree S.C |
SOLICITOR FOR THE FIRST RESPONDENT: | Apels Solicitors |
COUNSEL FOR THE SECOND RESPONDENT: | Mr P Tree S.C |
| SOLICITOR FOR THE SECOND RESPONDENT: | Farrellys Lawyers |
Orders
The proceedings brought by the applicant wife against the second respondent are summarily dismissed.
The applicant wife shall pay the first and second respondent’s costs determined in accordance with the Rules and scales under the Family Law Act (including certification for Senior Counsel), payment of such costs to be stayed pending either determination of the property proceedings between the husband and wife or such other time as is ordered by a Court exercising jurisdiction under the Family Law Act.
The costs application of the husband as against the wife in respect of the summary dismissal application be reserved.
These proceedings be adjourned to a Registrar’s Directions hearing at 10.00 am on 27 August 2012 at Cairns in respect of the property proceedings between the husband and wife.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage senior counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Thorpe & Thorpe and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC 547 of 2009
| Ms Thorpe |
Applicant
And
| Mr Thorpe |
First Respondent
| Ms R Thorpe |
Second Respondent
REASONS FOR JUDGMENT
These are part heard proceedings for the summary dismissal of equitable proceedings either accrued to this Court or under the relatively new provisions of the Family Law Act 1975 (Cth) (“the Family Law Act”) with regard to third parties.
The application was first heard by me in October last year and was the subject of significant debate as to the nature of the claim against the second respondent. After hearing submissions, I considered those matters and delivered reasons in relation to the application. The reason I did so is quite clear, that the claim made against the third party or the second respondent had some defects which, effectively, made the claim almost fatally flawed. It seemed to me that the claim of the wife in respect of the property ought not have been defeated by the process but ought to have been the subject of substantive consideration and, accordingly, I put in place some directions so that the clear nature of the claim against the second respondent could be set out and the facts upon which that was based could also be made clear to the Court.
A statement of claim was filed by the applicant wife on 10 January 2012 together with an affidavit in accordance with the directions made by me. A defence was filed by both the first and second respondents and a request for particulars was made. There has been no response to that request for particulars. Accordingly, there has been no application for an adjournment today or prior to today and there has been no application for leave to file any further proceedings. I am therefore left with the proceedings as they currently stand.
Mr Tree, who is senior counsel for the second respondent and now the first respondent has gone through the statement of claim and has submitted that I ought to dismiss the statement of claim as it is doomed to fail. He, in great fairness to the wife, said that if her claim had been drafted in a way that it was a license to occupy or that she had some form of contingent or remainder interest in Lot A, then his submissions may have been far more difficult but that was the whole point of the adjournment, to enable the third party to know what case was being brought against them.
Parties to a marriage are entitled to come to this Court and this Court adopts a very robust attitude in relation to the way matters are dealt with between parties but when one involves a third party in proceedings, the Court has to be, in my view, far more careful and ensure that that party knows the nature and effect of the claim brought against them. The claim that is brought against the third party by the wife in this case is and must, in the words of Mr Tree, be doomed to fail. So therefore it cannot stand in its current form. I do not intend to go through all of the submissions of Mr Tree in chapter and verse but I do include them in these reasons as part of my reasoning process and indicate that I accept them.
THE RELEVANT LEGAL PRINCIPLES TO BE APPLIED
As to the law in relation to summary dismissal the wife’s counsel set out in paragraphs 7 to 9 of her written submissions[1] the following:-
[1] Filed 3 October 2011.
7.Rule 10.12(c) and (d) Family Law Rules allow for Summary Orders to be made on the basis that it is “frivolous, vexatious or an abuse of process” or has “no reasonable likelihood of success”.
8.In the case of Friar:
a. the Full Court discussed and approved the principles of Summary Dismissal, referring to Bigg & Suzi and to Pellerman as follows:
(a)The power for summary dismissal is a discretionary one.
(b) Relief “is rarely and sparingly provided”.
(c) The parties seeking summary dismissal must show that the application is “doomed to fail” or as has been otherwise described “that the opponent lacked a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”.
(d) A weak case or one that is unlikely to succeed is not “sufficient to warrant termination”.
(e) “If there is a serious legal question to be determined, it should ordinarily be determined at a trial”.
(f) “If notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow that party to reframe its pleadings”.’
b. The Court in Friar also referred to Webster v Lampard where it was said:
In determining an application of this nature ... the rule ... is that if a version of the facts put forward by the respondent is not inherently incredible, then in the absence of any opportunity for cross-examination it is incumbent upon the court to proceed on the basis that the respondent's version will ultimately be accepted at the trial of the action”
c. The Court in Friar further referred to comments of Kirby J in Lindon v the Commonwealth (No.2) where he said:
1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided;
2.To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious;
3.An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;
4.Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts;
5.If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading.
6.The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the Court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the Court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit
d. Their Honours stated that “Regardless of the formulation, “exceptional caution” must be used in applications for summary dismissal and the power should be “sparingly employed”.
e. In Friar’s case, the property the subject of application was a unit owned by the husband and his sister in which the husband and wife had lived for 30 years. The wife argued that there was an “arrangement or understanding” that the wife and husband would be beneficial owners of the unit based on various representations made to her by the 2nd Respondent.
The facts in Friar’s case are not unlike [like] the facts here.
9.Giumelli’s case confirms that to succeed in summarily dismissing a claim the Court must be satisfied that the claim is “doomed to fail”.
The Court also agreed with the trial Judge in that “the Court should consider whether there is an appropriate equitable remedy falling short of a constructive trust.
Senior counsel for the second respondent succinctly outlined the law, saying:- [2]
[2] Second respondents written submissions filed 30 September 2011.
15.The relevant principles relating to summary dismissal in the Family Court have been established by in the cases of Bigg & Suzi and Pelerman & Pelerman. In Pelerman the Full Court summarised the principles at p.511 in the following terms:-
(a) The power for summary dismissal is a discretionary one;
(b) Relief “is rarely and sparingly provided”;
(c) The parties seeking summary dismissal must show that the application is “doomed to fail” or has been otherwise described “that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious”;
(d) A weak case or one that is unlikely to succeed is not “sufficient to warrant termination”;
(e) “If there is a serious legal question to be determined, it should ordinarily be determined at trial”;
(f) “If notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a Court will ordinarily allow that party to re-frame its pleadings.”
16.Notwithstanding that such summary relief is rarely and sparingly provided, this does seem to be an appropriate case in which to bring a claim for summary dismissal of that part of the wife’s claim that seeks a declaration of constructive trust, and the transfer of lot [A] to either the husband or the husband and the wife, because it is doomed to fail (Footnotes omitted).
There was no issue between the various parties as to the law applying in respect of summary dismissal. I accept and adopt their analysis of the law insofar as it relates to summary dismissal.
Thus using the discretionary power for summary dismissal (noting that it is rarely and sparingly provided), I must be satisfied that the case against the second respondent is doomed to fail or it otherwise lacks a reasonable cause of action. The wife’s case must be less than just a weak case or one that is unlikely to succeed. If there are serious legal questions to be determined, it should ordinarily be determined at a trial.
In all of this the Court must be conscious that if there are defects of pleadings, but it appears that the wife may have a reasonable cause of action, the Court should ordinarily allow that party to reframe its pleadings.
Senior counsel for the second respondent submitted, and I accept, that the basis of the summary dismissal must be on the case that the wife has set out
The scope of the wife’s claim for a present entitlement to a whole of Lot A is clearly misconceived and even on the evidence in the best light, in my view, cannot succeed and, as such, I must accede to the application on behalf of the second respondent and it is, therefore, summarily dismissed.
In terms of the question of costs, there are a number of aspects which have been raised. Firstly, whether it should be dealt with under s 117 of the Family Law Act, which provides, subject to sub-section 2:-
Each party to proceedings under this Act shall bear his or her own costs.
It seems to me that the term under this Act means proceedings between parties. There was no argument that the application by the wife against the second respondent was under the accrued jurisdiction of this Court, so whilst the proceedings, in that regard, are in this Court, they are an accrued jurisdiction of either the Supreme Court or the Federal Court in equity. It seems to me, in those circumstances, that the costs ought to be dealt with in accordance with the normal principles adopted by those courts, that is that costs follow the event.
Interestingly, had the application have been made under the third party amendments, then I suspect that s 117 would have applied. The interesting aspect, of course, in relation to costs in this matter would have been the question of the wife’s financial circumstances, which I take, from the material before me, are of a somewhat impecunious nature. However, notwithstanding that, if one takes proceedings in the Federal Court or the equity division claiming an equitable interest in a property and that proceeding is dismissed, it would normally be that the costs would follow the event and I propose to do so in this case and I will direct that the costs will be determined under the Rules in accordance with the scales under the Family Law Act, however, I will certify for senior counsel.
I will also, at the suggestion of senior counsel for the second respondent and first respondent, defer payment of the costs pending the determination of the property proceedings between the husband and wife to such other time as a court may order under the Family Law Act.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 4 July 2012.
Associate:
Date: 4 July 2012
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