Wayne & Dillon & Anor

[2008] FamCAFC 204

FAMILY COURT OF AUSTRALIA

WAYNE & DILLON & DILLON [2008] FamCAFC 204

FAMILY LAW - APPEAL – Leave to appeal – From decision of Federal Magistrate – PROPERTY SETTLEMENT – PRACTICE & PROCEDURE – Joinder – Wife commenced proceedings in Federal Magistrates Court seeking orders by way of alteration of property interests – Wife alleged a third party had commenced a financial interrelationship with the husband and she sought to join her to the property settlement proceedings as a second respondent and that she be restrained from dealing with certain real property – Reasons were delivered for refusing the wife’s application – A few months later the wife brought a further application for joinder of the third party which was heard by a different Federal Magistrate – Federal Magistrate granted leave to wife to join the third party to the proceedings – Third party sought leave to appeal the orders for joinder – The central contention is that the wife had not made out any properly particularised claim, recognisable at law, against the third party – Argued that there was no new, or no sufficient new evidence, upon which the Federal Magistrate could revisit the question of joinder – Argued that issues about disclosure, whether by the husband or the third party, was not a justification for the joinder – Argued that the joinder of the third party to the proceedings was oppressive – Leave to appeal granted – Appeal allowed – Application for amendment to join third party dismissed

Family Law Act 1975 (Cth), s 106B
Family Law Rules 2004, r 6.02
Federal Magistrates Court Rules 2001, r 11.01, r 11.01(1), r 11.02, r 11.02(3)

B Pty Ltd and Ors & K and Anor [2008] FamCAFC 113
Butler-Andrews & Andrews and Ors [2007] FamCA 673
Gitane & Velacruz (2007) FLC 93-309
Gould v Gould; Swire Investments Ltd (1993) FLC 92-434
In the Marriage of Bishop (2003) 30 Fam LR 108
Rutherford and Rutherford (1991) FLC 92-255
The State of Queensland and Anor v J L Holdings Pty Ltd (1997) 189 CLR 146

APPELLANT: MS WAYNE

FIRST RESPONDENT: MS DILLON

SECOND RESPONDENT: MR DILLON

FILE NUMBER: BRC 2537 of 2007

APPEAL NUMBER: NA 76 L of 2008

DATE DELIVERED: 17 December 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Warnick J

HEARING DATE: 10 December 2008

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 25 July 2008

LOWER COURT MNC: [2008] FMCAfam 883

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms N A Martin

SOLICITOR FOR THE APPELLANT: Berck & Associates

COUNSEL FOR THE FISRT RESPONDENT: Ms M Howe

SOLICITOR FOR THE FIRST RESPONDENT: Sempre Vero Lawyers

COUNSEL FOR THE SECOND RESPONDENT: Mr A B George

SOLICITOR FOR THE SECOND RESPONDENT: John Paul Mould Solicitors

Orders

1. That the applicant [MS WAYNE] be granted leave to appeal orders 1 to 3 of the orders of Purdon-Sully FM made on 25 July 2008.

2. That the appeal be allowed.

3. That orders 1 to 3 of the order of Purdon-Sully FM made on…