West and Peters & Ors

[2013] FamCA 718

FAMILY COURT OF AUSTRALIA

WEST & PETERS AND ORS [2013] FamCA 718

FAMILY LAW - PROPERTY SETTLEMENT – Leave to intervene by third party – Just and equitable - Where the applicant in a case has not demonstrated an interest that can be distinguished from the third respondent - Where the application is misconceived - Application dismissed.

Family Law Act 1975 (Cth) Section 79
Family Law Rules 2004 (Cth) Reg. 6.02

APPLICANT: Ms West

FIRST RESPONDENT: Mr Peters (Deceased)

SECOND RESPONDENT: Ms B Peters

THIRD RESPONDENT: Mr C Peters

FOURTH RESPONDENT: Mr West

FILE NUMBER: TVC 1541 of 2007

DATE DELIVERED: 12 September 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Loughnan J

HEARING DATE: 12 August 2013

REPRESENTATION

APPLICANT: Ms West in person (by phone)

SECOND RESPONDENT WIFE: Wife in person

LEGAL PERSONAL REPRESENTATIVE FOR THE DECEASED HUSBAND AND

THIRD RESPONDENT:

Mr Peters in person

FOURTH RESPONDENT: Mr West in person (by phone)

Orders

1.The application of Ms West filed on 11 April 2013 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym West & Peters & Ors is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: TVC 1541 of 2007

Ms West

Applicant

And

Ms B Peters

First Respondent

And

Mr C Peters

Legal personal representative for the late Applicant Husband and Second Respondent

And

Mr West

Third Respondent

REASONS FOR JUDGMENT

Introduction

1. Property settlement proceedings between husband and wife, Mr and Ms B Peters commenced in the Federal Magistrates Court in 2007 and were heard by me in June 2012. During the period that judgment was reserved following that hearing, the husband died. On the application of the wife, leave will be granted for her to continue those proceedings against the legal personal representative of the deceased husband. The substantive hearing will resume on 14 October 2013.

2. The parties to the property settlement proceedings were the husband and wife, the husband’s son, Mr Peters and the wife’s son in law, Mr West.

3. On 11 April 2013 Ms West filed an application in a case seeking orders against parties to the proceedings, the effect of which would have her joined as a party to the proceedings.

4. Ms West is the wife of Mr West and the daughter of Ms B Peters.

5. The application is opposed by Mr West but not opposed by Mr Peters or the wife.

6. Unfortunately the application was just one of many issues in very complicated proceedings that came before the Court in a busy list with other matters. For reasons of time, judgment was reserved. These are the reasons for judgment in respect of Ms West’ application.

Applications

1. By her Application in a Case filed 11 April 2013, Ms West seeks the following orders:

   (1)Within 14 days that [Mr West] pays to me the sum of $260,000 plus legal interest from 1 December 2007; alternatively that [Mr West] execute all documents to transfer to me title of the property known as [D Street, Suburb E] NSW and [Mr West] indemnifies me of all costs associated with the property up to date of transfer.

   (2)[Mr Peters’] orders are dismissed against [Mr West].

Documents read

1. Ms West relied on the following documents:

   Application in a Case filed 11 April 2013 and

   Affidavit of Ms West sworn 8 April 2013 filed 11 April 2013.

2. The wife and Mr Peters filed documents but they do not refer to the orders sought by Ms West.

The hearing

1. None of the parties was legally represented at the hearing.

2. Brief oral submissions were made by the parties. I confirmed that none of the parties sought to further address the Court and judgment was reserved.

Discussion

1. Certain persons must be joined as parties. Rule 6.02 of the Family Law Rules 2004 provides

   FAMILY LAW RULES 2004 – REG 6.02

   Necessary parties

   (1)A person whose rights may be directly affected by an issue in a case, and whose participation as a party is  necessary  for the court to determine all issues in dispute in the case, must be included as a party to the case.

   Example:  If a party seeks an order of a kind mentioned in section 90AE or 90AF of the Act, a third party who will be bound by the order must be joined as a respondent to the case.

2. Ms West’s application is misconceived and must fail.

3. She makes two claims for relief, each apparently arising from her recent estrangement from Mr West. Insofar as the first prayer for relief, the application apparently proposes that fresh section 79 proceedings between the Wests be grafted onto complicated property proceedings arising out of the breakdown of the Peters’ marriage after those proceedings are set to resume under section 79(8). Even if that was a good idea, the joinder is too late in the piece. In any event the substratum of facts in the two causes of action can have only the most casual connection.

4. I have a recollection that I was told about proceedings already instituted as a result of the breakdown of the West’s marriage. If that is the case then it would be an abuse of process to commence related proceedings here.

5. As to the second prayer, Ms West simply repeats the order sought by her husband, an order that is also supported by her mother, the wife in the proceedings. Ms West is a person who is likely to be affected by the disposition of one claim made in the case of the late husband in respect of a property at Suburb E. However, she does not suggest that her interest is different to that of Mr West or that there is another basis warranting her joining the proceedings at the eleventh hour. She should not be allowed to add fresh evidence to what amounts to a part-heard case, particularly where an important witness is no longer available to respond. Ms West attended the original trial and assisted her husband in the preparation and (by leave) the presentation of his case. She had every opportunity to ensure that all relevant evidence was before the Court.

6. Ultimately, the question is one of justice and in the circumstances of this case, the joinder of Ms West is neither necessary nor appropriate. She has not demonstrated that on the issue of the Suburb E property, she has an interest that can be distinguished from that of Mr West, let alone a case that is different to that of her mother and Mr West.

7. Of course she may attend the reopened trial and as a person potentially affected by one order sought, can be heard if necessary. For example she would be entitled to be heard if the parties were to compromise the Suburb E claim in a way that was adverse to her interests.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Loughnan delivered on 12 September 2013.

Associate:

Date:  12 September 2013