Willmann & Willmann (No 4)
[2022] FedCFamC1F 1016
Federal Circuit and Family Court of Australia
(DIVISION 1)
Willmann & Willmann (No 4) [2022] FedCFamC1F 1016
File number: SYC 6037 of 2021 Judgment of: CAMPTON J Date of judgment: 19 December 2022 Catchwords: FAMILY LAW – PROPERTY – PRACTICE AND PROCEDURE – Oral application to amend Points of Claim – Where the husband seeks to extend his equitable claim to a property owned by the wife’s parents to include an additional two properties – Where the separate claim against the wife’s parents is listed for trial to commence within three months – Where each of the parties have filed extensive affidavit material – Where no notice of the purported amendment to the husband’s claim had been provided – Application of the husband to amend Points of Claim dismissed. Legislation: Family Law Act 1975 (Cth) s 79 Cases cited: Willmann & Willmann (No 3) [2022] FedCFamC1F 827 Division: Division 1 First Instance Number of paragraphs: 11 Date of hearing: 19 December 2022 Place: Sydney Solicitor for the Applicant: Mr Finan, Barkus Doolan Winning Solicitor for the Respondents: Mr Frakes, Watts McCray Solicitor for the Respondents: Ms Pigdon, Pigdon Norgate Solicitor for the proposed intervener: Mr Moore, Sim & Co Legal Services ORDERS
SYC 6037 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WILLMANN
Applicant
AND: MR WILLMANN
First Respondent
MR ANDREWS
Second Respondent
MS ANDREWS
Third Respondent
order made by:
CAMPTON J
DATE OF ORDER:
19 DECEMBER 2022
THE COURT ORDERS THAT:
1.The husband be granted leave to make an oral application to rely upon an amended Points of Claim seeking relief against the second and third respondents as contained in the document filed on the Commonwealth Court Portal without leave on 17 October 2022 at 1.34 pm.
2.The oral application made by the husband is refused.
3.The Points of Claim document filed on the Commonwealth Court Portal without leave on 17 October 2022 at 1.34 pm is voided.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Willmann & Willmann has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
CAMPTON J:
Mr Willmann (“the husband”) seeks leave to make an oral application to amend his Points of Claim filed on 15 December 2021 seeking relief against Mr Andrews and Ms Andrews (“the respondents”). The respondents filed a Points of Defence on 2 June 2022.
After the close of pleadings, the matter was listed before me for an interim hearing and trial management on 21 October 2022. On 27 October 2022 reasons for judgment were delivered and extensive trial directions and orders made as to the husband’s claim against the respondents being listed for trial over five days before Tree J commencing on 13 March 2023 (“the separate issues trial”). These reasons assume familiarity with that judgment, being Willmann & Willmann (No 3) [2022] FedCFamC1F 827. Further directions were made listing the balance of the husband and wife’s dispute pursuant to s 79 of the Family Law Act 1975 (Cth) for hearing over three days before me, commencing on 11 September 2023.
The proceedings came before me again today for the purposes of trial management in anticipation of the separate issues trial.
On 23 November 2022 (albeit one day late) the husband filed his affidavit material to be relied upon at the separate issues trial. No issue as to the late filing was taken by the respondents, who then filed and served their extensive affidavit material on 9 December 2022 in accordance with the trial directions. The husband was due to file an affidavit in reply by 16 December 2022. He has not yet done so.
On Saturday afternoon, being on the weekend before this 9.30 am Monday trial management listing, the husband purported to file on the Commonwealth Court Portal an amended Points of Claim document. That document expands the relief sought by the husband against the respondents from being directed to a single property at C Street, B Town (D Property), to include two additional properties. During the course of the listing before me, the addition properties were referred to as being located in Suburb H. They are separate and legally dislocated from D Property however the husband may now assert the additional properties together with D Property form a single farm.
At no time over the course of the litigation to date have the additional lots been identified as the subject of any claim. D Property as a single lot is clearly identified in the reasons delivered on 27 October 2022 as the subject of the husband’s claim against the respondents. Since the delivery of that judgment, no notice was provided to the respondents or to the wife of the proposed amendment to the Points of Claim.
The husband today has sought leave to make an oral application to amend the Points of Claim in the terms as purportedly filed on 17 December 2022. The respondents do not oppose the making of the oral application but oppose the husband being granted leave to amend.
Putting it plainly, there has been no adequate explanation by the husband as to why, in circumstances where he filed his Response to an Initiating Application on 18 December 2021 and first filed his Points of Claim on 15 December 2021, he has failed to notify the wife or the respondents of the claim he had proposed to make in respect of additional properties.
The legal representative of the respondents indicated that the evidence filed by the parties in anticipation of the separate issues trial was contained within the parameters of the claim made by the husband as it existed on 27 October 2022 and as it existed until last Saturday. That evidence is properly directed to the case pleaded by the husband. It was not drafted and filed to meet a different case bought without notice. The only explanation proffered by the husband as to why he has changed his case so late in the litigation is that the original formulation of his Points of Claim were infected by error. The submission did not extend to the foundations of that error.
I accept there is prejudice that cannot be rectified to the respondents should the husband be permitted to amend his Points of Claim at this late stage of the proceedings and in the immediate shadow of the separate issues trial.
In the circumstances, the husband’s application for leave to amend his Points of Claim is dismissed.
I certify that the preceding eleven (11) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 19 December 2022