Willmann & Willmann (No 5)
[2023] FedCFamC1F 75
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Willmann & Willmann (No 5) [2023] FedCFamC1F 75
File number(s): SYC 6037 of 2021 Judgment of: CAMPTON J Date of judgment: 17 February 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application by the husband to amend his claim against the second and third respondents, being the wife’s parents – Where one aspect of the proposed amendment to the claim relates to the identification of a property and is permitted – Where the further aspects of the amendments substantially change the relief sought by the husband in a manner not previously raised by him – Where leave to amend is sought three weeks prior to the hearing of the husband’s claim against the wife’s parents – Where all parties have filed their affidavit evidence to be relied upon at that hearing – Where to permit a late the further aspects of the amendments sought would occasion to the wife and the wife’s parents and would be inconsistent with the mandatory objectives imposed by the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Further amendments not permitted – Order for costs made by consent. Legislation: Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67 and 68
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 3.03, 7.13
Federal Circuit and Family Court of Australia, Central Practice Direction – Family Law Case Management, 28 November 2022
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Willmann & Willmann (No 3) [2022] FedCFamC1F
Willmann & Willmann (No 4) [2022] FedCFamC1F 1016
Division: Division 1 First Instance Number of paragraphs: 53 Date of hearing: 16 February 2023 Place: Sydney Counsel for the Applicant: Mr Stapleton Solicitor for the Applicant: Watts McCray Lawyers Solicitor for the First Respondent: Mr Finan, Barkus Doolan Winning Solicitor for the Second and Third Respondents: Mr Hensley, Pigdon Norgate Family Lawyers ORDERS
SYC 6037 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR WILLMANN
Applicant
AND: MS WILLMANN
First Respondent
MR ANDREWS
Second Respondent
MS ANDREWS
Third Respondent
order made by:
CAMPTON J
DATE OF ORDER:
17 February 2023
BY CONSENT THE COURT ORDERS THAT:
1.Order 1 of 26 September 2022 be varied to replace the words, “[Ms J]” with “[Mr K]”.
2.Within seven (7) days of the date of these orders, the husband provide any response in relation to the draft joint letter of instruction addressed to Mr K and sent to the husband’s lawyer on 1 February 2023.
AND ON A DEFENDED BASIS IT IS ORDERED THAT:
3.In accordance with Order 15 of the orders made on 27 October 2022, the husband attend to payment of his contribution of the fees of the single real property expert valuer, L Services, in the sum of $8,800 by close of business on 20 February 2022.
4.The husband have leave to file, serve and rely upon for the purposes of trial commencing on 13 March 2023 before Tree J an Amended Response to an Initiating Application incorporating Amended Points of Claim, on condition that he:
(a)Pay to the solicitor for the wife’s parents their costs of and incidental to his Application in a Proceeding in the sum of $30,000, within seven (7) days; and
(b)Pay to the solicitor for the wife her costs of and incidental to the his Application in a Proceeding in the sum of $6,000, within seven days; and
(c)File and serve an Amended Response to an Initiating Application attaching his Amended Points of Claim as amended from that filed on 15 December 2021, by deleting any reference to the words “the property situate at and known as [C Street, B Town] NSW […] and being the whole of the land comprised in certificate(s) of title volume folio/folio identifier […]” and inserting “the properties situate at and known as [C Street, B Town] NSW […] (being Lot […], Folio […]), and [Unit 1 M Street], (being Lot […], Folio […]) and [Unit 2 M Street, Suburb H] NSW (being Lot […], Folio […])”.
(d)Should he elect to do so, at his own cost in the first instance, obtain from Mr N, in his capacity as the single real property expert witness, by no later than close of business on Tuesday, 7 March 2023 (only to the extent that such opinion has not already been produced as to C Street):
(i)An opinion as to the value of the D Property as at July 2011 (being the properties identified in above);
(ii)An opinion as to the value of the D Property as at the current date.
5.Such Amended Response to an Initiating Application shall be filed and served on or before 28 February 2023.
6.In the event the husband complies with Order 4 and 5 above, wife’s parents (and the wife should she so elect) shall file any Amended Response to an Initiating Application and Amended Points of Defence as they are advised on or before 6 March 2023.
7.Should the husband seek to rely on what he described in the hearing before me as a “two-page affidavit” of additional evidence he wishes to adduce for the purpose of the separate issues trial, he shall serve a copy of that additional affidavit on the other parties no later than 23 February 2023 and is at liberty to make such application to Tree J to rely on that affidavit as he is advised.
8.The husband shall be at liberty to obtain from Mr N, as the single real property expert, such opinion as to the “median house prices in the Greater Sydney Area from 2011 to date”, at the husband’s expense in the first instance.
9.The parties shall not be permitted to file or rely on any further affidavit evidence for the purpose of the separate issues trial without leave.
10.In the event the husband does not pay the costs of the wife and the wife’s parents in compliance with Order 4 above, the wife’s parents and the wife shall be at liberty to re‑list the proceedings and make such application for costs of and incidental to the husband’s Application in a Proceeding filed on 9 February 2023 within 14 days of these orders.
11.The husband shall provide to the single expert remuneration witness his Statement of Contended Facts pursuant to r 7.13(5) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) on or before 21 February 2023.
12.The balance of the relief contained in the husband’s Application in a Proceeding filed 9 February 2023 and each of the wife and the wife’s parents’ Responses to an Application in a Proceeding filed 15 February 2023 is dismissed.
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).
REASONS FOR JUDGMENT
CAMPTON J:
These proceedings were commenced by Ms Willmann (“the wife”) on 18 August 2021 by way of an Initiating Application seeking orders for property adjustment pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). Mr Willmann (“the husband”) filed a Response to that Initiating Application on 18 October 2021, seeking different orders by way of property adjustment and joining as parties to the proceedings Mr Andrews (“the wife’s father”) and Ms Andrews (“the wife’s mother”) as the second and third respondents (collectively, “the wife’s parents”). The husband’s relief against the wife’s parents is listed for final hearing before Tree J over five days, commencing on 13 March 2023 (“the separate issues trial”).
This judgment determines the husband’s Application in a Proceeding filed on 10 February 2023 and each of the wife’s and the wife’s parents’ Responses to that Application in a Proceeding filed on 15 February 2023.
The husband and wife agreed to a consent order determining paragraphs 2 and 3 of the wife’s Response to an Application in a Proceeding in terms of Exhibit 10. The husband agreed to an order being made that he pay his share of the fees of Mr N, the single real property valuation expert, as sought in paragraph 2 of the wife’s parents’ Response to an Application in a Proceeding on the basis that such fees be paid by 20 February 2023. Those orders will be made.
The gravamen of the husband’s relief determined by this judgment is his application for leave to amend his Response to an Initiating Application filed on 18 October 2021 (“the husband’s Response”), by amending his Points of Claim identifying and pleading his claim as against the wife’s parents as filed on 15 December 2021. As recorded later in these reasons, this is not the first occasion that the husband has sought leave to so amend. Each application for leave to amend was made after the filing of the affidavit evidence of the parties to be relied upon at the separate issues trial. This present application is made some three weeks prior to the separate issues trial.
These reasons assume familiarity with the reasons for judgment delivered on 27 October 2022, Willmann & Willmann (No 3) [2022] FedCFamC1F and with the reasons for judgment delivered on 19 December 2022 (see Willmann & Willmann (No 4) [2022] FedCFamC1F 1016) (“Willmann (No 4)”).
The claim against the wife’s parents relates to real property located on the outskirts of Sydney that I shall identify as “D Property”. The husband has on occasion identified this real property as “the B Town Property” and “the property”. As recorded in the reasons delivered 27 October 2022:
11In the year of the wife’s birth, the [wife’s parents] acquired a property at [C Street, B Town] NSW (“[the D Property]”). The second respondent’s affidavit records that since their initial purchase, he and the third respondent have added and sold a number of parcels of land making up [the D Property]. His evidence further records that:
(a)In 1985, the [wife’s parents] completed construction of their family home on [the D Property] and that they raised their four children, including the wife, in that home. The husband and wife lived in that family home for a period of about six years from 2011 to 2017. As I understand it, the husband’s relief sought by way of paragraphs 3 to 7 of his Response to an Initiating Application filed on 18 October 2021 is as to the block of land on which the family home is situated, being Lot […], Folio […]. I shall refer to this property as “[C Street]” for the purpose of these reasons;
(b)In 1986, the [wife’s parents] completed construction of a separate [dwelling] on [the D Property]. The [wife’s parents] lived in that [dwelling] at various times, including while the husband and wife lived in the family home at [C Street]. The [wife’s parents’] son currently live in the [dwelling] at [the D Property] with his three children; and
(c)There are a number of other dwellings on [the D Property], including [work and residential buildings].
12The [wife’s parents] currently live in Sydney. They plan to return to [the D Property] upon retirement to live in the family home at [C Street].
The two properties, Unit 1 M Street, Suburb H (“Unit 1 M Street”) and Unit 2 M Street, Suburb H NSW (“Unit 2 M Street”), adjoin C Street. They are owned by the wife’s parents and are largely unimproved bushland and grassland (save for some fencing). Unit 1 and Unit 2 M Street have been historically used for livestock. It seems uncontroversial that the three lots have operated in conjunction as one property, at least in recent times.
For the reasons that follow, the husband has leave to file and serve and rely upon for the purposes of the separate issues trial, an Amended Response to an Initiating Application incorporating Amended Points of Claim on condition that he:
(a)Pay to the solicitor for the wife’s parents their costs of and incidental to his Application in a Proceeding in the sum of $30,000, within seven days of the date of any determination; and
(b)Pay to the solicitor for the wife her costs of and incidental to the his Application in a Proceeding in the sum of $6,000, within seven days of the date of any determination; and
(c)File and serve such Amended Response to an Initiating Application attaching his Amended Points of Claim as amended in the terms recorded later in these reasons; and
(d)Obtain, at his own cost in the first instance, for the parties, from Mr N (“the single real property expert”), by no later than close of business on Tuesday, 7 March 2023:
(i)An opinion as to the value of the D Property as at July 2011, insofar as that opinion has not already been obtained; and
(ii)An opinion as to the value of the D Property as at the current date, again insofar as that opinion has not already been obtained.
Such Amended Response to an Initiating Application shall be filed and served on or before 28 February 2023. In that circumstance, the wife’s parents will be required to file any Amended Response to an Initiating Application and Amended Points of Defence as they are advised on or before 6 March 2023.
Further orders shall be made to further facilitate the efficient preparation of the matter for the separate issues trial, including orders restricting the parties from relying on any further affidavit evidence without leave of the Tree J and to facilitate the completion of the report of the single remuneration expert. If the husband seeks to rely on a further two page affidavit, as was foreshadowed during the course of the hearing of his Application in a Proceeding, or to obtain from Mr N an opinion as to the “median house prices in the Greater Sydney Area from 2011 to date” (whatever that means), that will be a matter for him. He may seek to make such application on those subject matters as he is advised to Tree J.
The balance of the relief contained in the husband’s Application in a Proceeding and each of the wife and the wife’s parents’ Responses to an Application in a Proceeding shall be dismissed, save as to costs should the husband not exercise the leave granted.
BACKGROUND
The husband and the wife married in 2008. They have two children, one of whom is an adult and the other a teenager. The wife asserts the parties separated in January 2018. The husband asserts the parties separated on 12 March 2021. On 6 October 2022 an order for divorce was made in the Federal Circuit and Family Court of Australia (Division Two).
The husband’s Response sought declaratory relief that the wife’s parents held an item of real property on trust for he and the wife, specifically identified as being “the property situate at and known as [C Street, B Town] NSW […] and being the whole of the land comprised in certificate(s) of title volume folio/folio identifier […]” (that is, C Street). He sought ancillary orders for the wife’s parents to transfer that property to the husband and wife as tenants in common. As an alternative to his primary relief, he sought a declaration that the specific identified property be subject to an equitable charge in favour of the husband and the wife to the value of their contributions to it.
On 15 December 2021, in accordance with an order made on 17 November 2021, the husband filed and served a Points of Claim document framing the basis for relief sought against the wife’s parents. That document again precisely identified as the subject of the husband’s substantive relief sought as being “the property situate at and known as [C Street, B Town] NSW […] and being the whole of the land comprised in certificate(s) of title volume folio/folio identifier […]” (that is, C Street).
The wife’s parents resisted their joinder to the proceedings. On 8 April 2022 orders were made by Rees J confirming the joinder as provided for by r 3.03 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). The reasons delivered by Rees J recorded the contention at that time of the wife’s parents that the case prosecuted by the husband did not establish any “detrimental reliance on the pleaded representations” by him that exceeded the “received benefits” from the wife’s parents (at [30]). On the husband’s own construction of his case, his position did not alter until the filing on his Application in a Proceeding on 9 February 2023.
On 2 June 2022 the wife’s parents filed a Response to an Initiating Application and a Points of Defence document seeking that the husband’s relief as articulated be dismissed.
The proceedings first came before me in the Major Complex Financial Proceedings list and directions were made on 26 August 2022. On that date the husband confirmed his claim against the wife’s parents was that contained in his Response filed on 18 October 2021, as pled in his Points of Claim filed on 15 December 2021. The orders made on that date included the following notations:
E.The relief claimed by the husband as against the wife’s parents is as to a property at [C Street, B Town] NSW […] (“the [B Town] property”), such that he seeks a declaration that the wife’s parents hold that property on trust for he and the wife as tenant in common in equal shares and seeks a consequential order that the wife’s parents transfer their legal interest in that property to he and the wife. The claim of the husband as against the wife’s parents is by way of promissory estoppel.
F.The husband’s claim as against the wife’s parents who are now the second and third respondents in the proceedings is pleaded by way of a Points of Claim document filed by the husband filed on 15 December 2021, and that [the wife’s parents] have filed Points of Defence on 2 June 2022.
(As per the original)
On 27 October 2022, for reasons then delivered, orders were made listing paragraphs 3 to 7 inclusive of the husband’s Response for the separate issues trial. The s 79 portion of the proceedings was listed for trial before me for three days commencing on 11 September 2023. A broad series of other orders and directions were made as to the preparation of the respective matters for each trial. As recorded at [6] above, the reasons delivered on 27 October 2022 specifically recorded that the portion of land to which the husband’s relief as against the wife’s parents was directed was C Street. The balance of those reasons are peppered with references to “[C Street]” in relation to the husband’s relief sought, as opposed to the “[D Property]” or the “[B Town property]” or “[the property]” generally. The husband did not file an appeal from or otherwise seek to agitate from the matters identified those reasons delivered or the orders made.
On 23 November 2022 the husband filed his affidavit material to be relied upon at the separate issues trial. The wife’s parents then filed and served their extensive affidavit material on 9 December 2022. The husband filed his affidavit in response on 20 December 2022.
On 17 December 2022, without leave or prior notice to any other party, the husband purported to file an Amended Points of Claim on the Commonwealth Courts Portal. That document expanded the relief sought by the husband against the wife’s parents from being directed to a single property (C Street) to include Unit 1 M Street and Unit 2 M Street.
On 19 December 2022 the proceedings again came before me for the purpose of trial management in anticipation of the separate issues trial. For reasons then delivered, orders were made that:
1.The husband be granted leave to make an oral application to rely upon an amended Points of Claim seeking relief against the [wife’s parents] 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.
The effect of those orders was that the husband’s relief at the separate issues trial was confined to that contained in his Response and Points of Claim filed on 15 December 2021, being specifically directed at C Street (and not Unit 1 or Unit 2 M Street).
Underscoring the reasons for judgment in Willmann (No 4) was the concession properly made by the husband in his submissions (Exhibit 1) that there was “no evidence supporting [the husband’s] oral application for leave to amend”.
The husband deposes in his affidavit filed in support of the Application in a Proceeding on 9 February 2023 that his solicitors made attempts to seek leave to appeal from, and if such leave was achieved, to appeal from the determination made on 19 December 2022. The Notice seeking Leave to Appeal he attempted to file on 16 January 2023 became Exhibit 3. An email from the Appeal Judicial Registrar rejecting the filing of the Notice of Appeal became Exhibit 4. That email records:
For orders to be appellable they must ‘determine the proceedings or an identifiable part of them’ (Tallent & Kelsey [2016] FamCAFC 2017). Under the current applicable legislation, the Honourable Justice Austin considered the question of what constitutes a “judgment” for the purposes of s 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) in Fierro & Fierro [2022] FedCFamC1A 72 and Falydn & Badenoch [2022] FedCFamC1A 170.
Austin J referred to the definition of the term “judgment” as covering only judicial decisions which are in some way decisive of litigants’ rights, even if only on an interim basis”. In Fierro, Austin J found as follows:
15.The High Court has stated that a “judgment” from which an appeal lies is the “operative judicial act” embodied in the court’s orders which resolve the justiciable dispute (Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at 64). Importantly, a “judgment” does not include rulings on points of law or answers to questions of law which arise during the proceedings, when those rulings or answers are not decisive of the parties’ rights. Nor are rulings converted to “judgments” simply by expressing them in the form or language of orders (Commonwealth v Mullane (1961) 106 CLR 166 at 169; Yule v Junek (1978) 139 CLR 1 per Mason J at 14, Jacobs J at 18, Murphy J at 21 and Aickin J at 26).
In my view, the ruling made by the primary Judge to disallow the proposed amendment of the Points of Claim is not a “judgment” for the purposes of the Federal Circuit and Family Court of Australia Act 2021 (Cth). It therefore follows than no appeal can competently be brought against order 2 made by the primary judge on 19 December 2022.
Order 3 made on 19 December 2022 does not purport to deal with any rights of the parties and is entirely procedural in nature. No competent appeal can be filed against this order.
(As per the original)
There is no evidence of the husband seeking to review or otherwise challenge the determination made by the Appeal Judicial Registrar.
The husband did not disclose to the other parties the fact or terms of the still unfiled Notice of Appeal in a timely manner pursuant to the Rules. He was silent as to his attempted filing of the Notice of Appeal or as to his intention to make any further application to amend his Points of Claim when the proceedings came before me for further management on 25 January 2023. The orders made on that date included that:
4.For the purposes of the separate issues trial listed to commence over 5 days on 13 March 2023, the solicitors for the husband and [wife’s parents] advise that save and accept for some queries as raised by the remuneration expert the parties, which they have complied with the trial directions and are otherwise ensuring that the matter is ready to proceed for hearing.
5.In the event that the husband and or [the wife’s parents] become aware that any matter that would prevent the separate issues [trial] commencing on the first day allocated being 13 March 2023 or continuing to conclusion allocated, that party is to restore the proceedings to the list on 48 hours’ notice to my chambers and the other party.
THE ISSUES IN DISPUTE
On 8 February 2023, about one month before the separate issues trial, the husband exercised a capacity to relist the proceedings in the event of any issue arising that would prevent the trial from commencing on the first listed day. He advised the Court and the other parties of his intention to make a “further application for leave to amend the Points of Claim”, which meant that “plainly the hearing cannot proceed”. His Application in a Proceeding was filed the next day. As part of his relief sought consequent upon leave to amend his Points of Claim being achieved, he sought to vacate the separate issues trial.
The husband provided notice in his Submissions (Exhibit 1), filed and served at about 8.00 pm on the evening prior to the hearing, of his intention to seek leave to file an Amended Response to an Initiating Application so that his final relief reflected that as contained in his proposed Amended Points of Claim.
The husband’s proposed amendments to his Points of Claim are recorded in an annexure to his Application in a Proceeding. That annexure became Exhibit 6. The husband correctly identified in his affidavit that the amendments “provide for substantial changes to the original claim filed 15 December 2021”. Specifically, of the existing eight paragraphs of relief, Exhibit 6 proposes to amend four, remove one, and add one. As was identified by senior counsel for the wife’s parents, the proposed amendments were not confined to those matters subject to the dismissed oral application to amend made on 19 December 2022, but had the effect of:
(a)Expanding the subject of the relief sought against the wife’s parents from C Street to include Unit 1 and Unit 2 M Street; and
(b)Including in the trust claim the “[business] and rental of accommodation facilities for profit” operated on the D Property (being “the [property] enterprise”);
(c)Introducing the concept of “lost opportunity” as a basis for equitable relief in favour of the husband.
Notwithstanding the above, in his Case Outline and during submissions, senior counsel for the husband identified the proposed amendments to the Points of Claim in the following terms:
3.There are two substantive parts to the proposed amendments. The first is that two additional lot numbers need to be included as part of the identification of the subject property, which the parties in their evidence have referred to as “[…]”. The second is to amend pleadings of material facts and particulars (by also deleting some parts of the original Points of Claim) to achieve three objects; first to bring the Points of Claim into line with the evidence now served; second to more appropriately plead the elements of causes of action in estoppel and trust; and third to identify the particulars of the compensation claim.
The suggestion that the proposed amendments are merely made to bring the formal pleadings into line with the case that is already being argued by the parties and the evidence adduced in that case is somewhat disingenuous. I accept the charitable description of senior counsel for the wife’s parents of proposed amendments as representing a “wholesale recasting of the case that has otherwise been maintained by the husband since December 2021 without deviation until 10 February 2023”.
Putting aside for one moment the question of the identification of the real property to which the husband makes claim, at no point throughout the proceedings (including the multiple hearings and case management listings) has he identified the “[property] enterprise” as being subject of his relief sought. The property enterprise did not form part of his Points of Claim filed on 15 December 2021 nor the Amended Points of Claim attempted to be filed on 17 December 2022 and voided by way of the orders made on 19 December 2022. It was not identified as being the subject of any claim when the husband attempted to file a Notice of Appeal on Appeal in January 2023 (Exhibit 3). In a not dissimilar vein, until making his current Application in a Proceeding the husband had not sought relief arising from the concept of “lost opportunity”.
In submissions, senior counsel for the husband said that the Appeal Judicial Registrar’s rejection of the Notice of Appeal “caused a focus on the issues in the pleading, with a view… to making an application” to amend the husband’s relief sought at the separate issues trial. I infer from that submission that the expanded relief recorded above (that is, other than to include the identification of three real properties to which the husband makes claim) could not have been on his landscape or on his horizon until sometime in February 2023. This inference is reinforced by the fact of the husband having the benefit of his current solicitors (who have access to all documents on the Court portal) since around 14 October 2022 and notice of these matters not having been given until February 2023.
During the course of the hearing, the husband made a number of concessions:
(a)First, that his relief as to the “[property] enterprise” was incidental to his primary relief pertaining to the D Property, such that in the event he was permitted leave to amend his Response and Points of Claim to include Unit 1 and Unit 2 M Street, his claim as to the “[property] enterprise” would be abandoned and could be excised from the amended relief; and
(b)Secondly, that should his application for leave to amend his Response and Points of Claim be unsuccessful, he would not seek to vacate the separate issues trial; and
(c)Finally, in the event there was any delay in Mr N providing his updated opinion as sought by the husband, the separate issues trial could still proceed. He accepted that no valuation would be required if he achieved his primary relief to retain the D Property in specie. Otherwise, the separate issues trial would be able to proceed to determine any liability of the wife’s parents by way of his alternate relief, with the quantification of such claim to be the subject of expert evidence potentially at a later date.
Hence it became the husband’s position that should he be granted leave to amend the Points of Claim and to rely on the Amended Response, he would not press an application to vacate the separate issues trial (contrary to paragraph 2 of his Application in a Proceeding). While he was content to excise from his relief those aspects relating to the “[property] enterprise”, he maintained those parts of the amendments that went to the propositions in equity of detriment and reliance and the concept of lost opportunity.
The husband further accepted as a condition of leave that he would meet the costs of the wife’s parents of his Application in a Proceeding in the sum of $30,000 and those of the wife of $6,000. He said he would seek the Court’s indulgence to put on a further two page affidavit to be filed by 20 February 2023, and that he would otherwise “expeditiously” be able to obtain further opinions as to the value of the D Property. That said, an order was required as identified earlier in these reasons to facilitate the payment of his share of Mr N’s fees to date. There was no evidence of the husband having enquired as to Mr N’s capacity to furnish the further opinions he seeks.
The husband agreed that he would be in a position to provide a contended Statement of Facts pursuant to r 7.13(5) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) to the remuneration expert expeditiously to ensure that single expert evidence was produced prior to the separate issue trial.
Notwithstanding the concessions and the husband’s amended position, the wife’s parents continued to oppose his Application in a Proceeding as a whole. This was supported by the wife.
EVALUATION OF THE HUSBAND’S CASE
Unit 1 and Unit 2 M Street
The crux of the husband’s case as to why his proposed amendment should be allowed at this very late stage of the proceedings was that the reference to C Street rather than the D Property as a whole, as specifically identified in his relief throughout these proceedings, was a mistake or omission on the part of his former solicitors and no more than that. Moreover, it was alleged to be a mistake which did not affect the way in which the husband’s claim has been understood by all of the parties in the proceedings, nor the scope of evidence which they have adduced in support of their cases. He submitted that the wife’s parents “cannot have been under any misapprehension that the husband was making a claim in respect of the [property] as a whole, not one severable part of it”. In support of that contention the husband directed the Court’s attention to various documents filed by each of the parties (including the wife and the wife’s parents) during the proceedings referencing the D Property as opposed to solely C Street.
It was submitted by senior counsel on behalf of the wife’s parents that the references in their evidence to the “D Property” rather than the specific lots of property which comprise it, does not lead to the conclusion that they have derogated from their appreciation of the claim that was made against as being specifically directed to C Street.
Notwithstanding that submission, I am satisfied from the evidence identified on behalf of the husband that it is more likely than not that each of the parties were aware that the husband’s claim against the wife’s parents was to real property of an area of some 700–750 acres, and hence have at all times been on sufficient notice of the gravamen of that claim. I am further satisfied that each of the husband, wife and the wife’s parents have had the capacity to ensure that their affidavit evidence was directed to that claim. That is particularly so given that it is relatively uncontroversial that nearly all of the contributions and improvements contended by the husband were occasioned to C Street, buttressed by the fact that Unit 1 and Unit 2 M Street are largely unimproved. Further, the husband has abandoned his claim to the property enterprise. This could be relevant for the purposes of the livestock activity on Unit 1 and Unit 2 M Street. It cannot be said having regard to the conduct of the parties in the proceedings that the wife’s parents were not at least constructively, if not implicitly, on notice that the husband sought in specie the three pieces of real property comprising D Property, and engaged in defending that claim. I do not accept, in all the circumstances, that there would be sufficient prejudice to the wife’s parents if the husband was permitted to amend his claim to include all three pieces of real property.
Hence, subject to the conditions set out later in these reasons, it is appropriate that the husband be permitted to amend his Points of Claim to include Unit 1 and Unit 2 M Street where the claim currently only identifies C Street.
Lost opportunity case
As was identified by senior counsel for the wife’s parents, no material reason was given as to why the expanded claim pertaining to “lost opportunity” is now raised so late in the day. Inferentially, the husband apportioned fault to his former solicitors for the omission of this aspect of his relief in his Points of Claim as filed. Having said that, the husband instructed his current solicitors on or about 14 October 2022. As recorded in these reasons, those current solicitors:
(a)Attempted to file on the husband’s behalf Amended Points of Claim on 17 December 2022, which did not articulate or plead relief grounded from “lost opportunity”; and
(b)Appeared on his behalf at the hearing before me on 19 December 2022, and did not raise this issue at the hearing on that date; and
(c)During the course of the case management hearing on 25 January 2023, represented on the husband’s behalf that the matter was all but ready to proceed to the separate issues trial on the basis of the material as filed.
I accept the submission of senior counsel for the wife that the husband’s proposed amendment on this issue could not be said to merely “bring the pleadings in line with the evidence”, in circumstances where each of the husband and the wife’s parents’ trial affidavits were filed prior to the “lost opportunity” case having been raised. The wife’s parents and the wife may reasonably wish to adduce further evidence to meet that case, should the amendment be allowed. I accept that they would not have a reasonable opportunity to do so prior to the separate issues trial to commence on 13 March 2023. That is especially so in circumstances where the further evidence foreshadowed to be filed by the husband has not been disclosed or served. He did not explain his neglect on this subject matter.
I find that to occasion procedural fairness to the wife and the wife’s parents it would be necessary to adjourn the separate issues trial, should the husband’s now amended relief as sought be permitted. The parties were put on notice that in the event the dates currently allocated for the hearing of the separate issues trial are lost, the next capacity of the Court to determine that separate issues trial is likely to be in March 2024. Such delay would have the cascading effect of requiring the current s 79 determination listed in September 2023 to be vacated and relisted sometime in late 2024, leaving the expert evidence obtained in relation to that portion of the proceedings stale and in need of updating (at further expense to the husband and wife). Hence the final hearing of these proceedings would not occur until some three years after the wife commenced these proceedings, at its earliest.
The wife’s parents have already expended significant funds in their attempts to comply with their obligations identified in ss 67 and 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”), and specifically in their obligation to act consistently with the overarching purpose to facilitate the just resolution of their dispute as quickly, inexpensively and efficiently as possible. The wife’s father has put on affidavit evidence which is unchallenged that:
14. My wife, [Ms Andrews], is not in good health and suffers from [medical] issues. She is under the treatment of cardiologist [Dr P] from [Q Health Service]. She has been diagnosed with [a medical condition] and is under the care of a [specialist] named [Dr R] from the [S Hospital] who is dealing with her […] disease issues which are associated with increased hypertension.
15. The stress associated with these proceedings is having an adverse impact on [Ms Andrews’] health and her ability to enjoy retirement.
To my mind, in all of the circumstances in this case, the potentials for delay occasions actual prejudice to the wife and the wife’s parents of the kind identified by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 (“Aon Risk”). The decision of the High Court in Aon Risk provides authority for courts to take into account case management principles when exercising discretion in procedural applications such as this, even to the prejudice of a party to a particular proceedings. The statements in Aon Risk were welcome recognition of the growing importance of active case management undertaken by judges. However, the High Court can only provide broad guidance to courts applying their own varied procedures to infinitely varied fact situations. It is for each court working within its legislative parameters and rules to adopt its own case management principles.
Specific reference was made in Aon Risk as to the role courts must play in ensuring the disposition of litigation. The High Court emphasised that it is not sufficient to pursue just and procedural outcomes merely by reference to the interests of the parties to a particular proceedings. The effects that a procedural decision will have on other litigants and the public’s interest on the use of a court’s resources must also be taken into account. The notion that parties to a proceeding are not entitled to consume an unlimited amount of public resources in the pursuit of their own interests is consistent with the obligations imposed by this Court as contained in the FCFCOA Act as identified in these reasons. This Court has a responsibility to ensure that litigation and management of its workload occurs according to law, and as efficiently and inexpensively as possible. In that sense, this Court is required to efficiently use its judicial and administrative resources, and exercise its business to ensure the disposal of all proceedings in a timely manner that is proportionate to the importance and complexity to the matters in dispute. While costs and delays might be seen as undesirable, a delay that causes a deleterious effect on a party to the proceedings and on other litigants and stakeholders of this Court is a very important consideration to take into account.
It is accepted that case management is not in and of itself a determining factor. Parties have an opportunity to plead their case and raise all relevant issues. That said, a party is expected to provide a very good reason why an amendment to its substantive relief is made so late in the day, particularly when such amendment requires other procedural indulgences.
To my mind, should the separate issues trial not be permitted to proceed due to prejudice as foreshadowed, costs are not an adequate remedy, particularly given the evidence recorded at [45] above directed to the deteriorating presentation of the wife’s mother. Costs are further not a sufficient remedy for disruption to the Court and other litigants. The possibility of vacating the separate issues trial in such close proximity to the dates is especially serious. It will result in the allocated judge being unlikely to hear some other trial at such short notice, and hence may cause wastage of judicial resources.
The husband additionally raised as a consideration the prospect of “satellite litigation” in other forums in the event he was not permitted to amend his Points of Claim in the terms as sought. I do not accept his submissions (save and except for as it pertained to Unit 1 and Unit 2 M Street). In the event he is of the view that he has a professional negligence claim to pursue against his former solicitors, that will be a matter for him. The determination to be made in the separate issues trial may shine light on the prospects of success of that claim or otherwise. I did not understand his contention as to why he would continue to seek leave to appeal, and if leave was granted, to appeal from the determination made on 19 December 2022. That said, by way of my determination today the amendment that he sought in December 2022 is now achieved.
The husband’s process of drip-feeding to other parties and the Court his sequential amendments to his claim against the wife’s parents in an unhurried and dilatory fashion is contrary to the provisions of ss 67 and 68 of the FCFCOA Act, the Rules and this Court’s Central Practice Direction – Family Law Case Management, 28 November 2022. Putting it simply, it is all too late in the day. The cascading potential adverse impacts on the Court’s carefully crafted series of sequential trial events is too great. The risk of failing the implementation of the above mandatory objectives weighs heavily. The husband ought to be bound by the case that he has constructed, including omissions.
CONCLUSION
For all of the above reasons, orders shall be made a set out at the forefront of this judgment.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Campton. Associate:
Dated: 18 February 2023
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