Woodcock & Woodcock (No 3)
[2023] FedCFamC1F 238
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Woodcock & Woodcock (No 3) [2023] FedCFamC1F 238
File number MLC 13421 of 2020 Judgment of WILSON J Date of judgment 4 April 2023 Catchwords FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – PRACTICE & PROCEDURE – wife foreshadowing joinder of trustees but not formally applying for their joinder – unsuccessful mediation – husband seeking orders for case to be fixed for trial – wife seeking orders that trial proceed yet her presently unarticulated claims against the trustees be held in abeyance until after the hearing and determination of the trial – held, wife must elect whether to join trustees within 14 days. Division Division 1 First Instance Number of paragraphs 14 Date of last submission 3 April 2023 Date of hearing 3 April 2023 Place Melbourne Counsel for the applicant Mr G. Dickson KC Solicitor for the applicant Nedovic Lawyers Counsel for the respondent Mr M. Wilson Solicitor for the respondent Lander & Rogers Counsel for the trustees as proposed parties to this proceeding Mr C. Shaw KC ORDERS
MLC 13421 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MR WOODCOCK
Applicant
AND MS WOODCOCK
Respondent
order made by
WILSON J
DATE OF ORDER
4 APRIL 2023
THE COURT ORDERS THAT –
1.On or before midday on 17 April 2023 the solicitors for the wife must write to the solicitors for the husband and to the solicitors for the trustees stating whether she presses for orders for the joinder of the trustees as parties to this proceeding.
2.If the wife elects to press for the joinder of the trustees, then –
(a)any such application must be filed and served by 4:00pm on 24 April 2023 together with all affidavit material in support thereof and written submissions;
(b)any response by way of opposition to that joinder application must be filed and served by midday on 8 May 2023 together with all affidavits and written submissions; and
(c)an interim defended hearing to determine the joinder application is fixed at 10:00am on 9 June 2023.
3.If the wife’s solicitors inform the solicitors for the husband and the solicitors for the trustees that she elects not to pursue the application for the joinder of the trustees in accordance with paragraph one above, then I order this proceeding be listed for mention at 10:00am on Friday 21 April 2023 in the Major Complex Financial Proceedings List with a view to fixing the case for trial and for the making of trial directions.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
Following the unsuccessful mediation in this proceeding, the parties have appeared before me for ongoing case management. The husband has sought orders advancing the case to trial. The wife has sought orders adjourning her application for the joinder of the trustees of four trusts[1] as parties to the proceeding until after the conclusion of the trial of the proceeding.
[1] The relevant trusts are B Pty Ltd as trustee for the B Trust, F Pty Ltd as trustee for the F Trust, E Pty Ltd as trustee for the E Trust and C Pty Ltd as trustee for the G Family Trust.
All parties recognised that the wife’s application was highly unusual. Counsel for the wife, when asked, was unable to tell me of a rule of court or principle of law that underpinned her application to hive off claims against intended parties until after the hearing and determination of the trial of the s 79 application vis-à-vis husband and wife.
In support of his application, Mr Mark Wilson of counsel for the wife submitted that his client would not know the precise quantification of the property pool until after the trial at which time the wife would be better appraised of whether her claim against the trustees was warranted, in terms of prospective return, effort and expense.
On behalf of the trustees, Mr Charles Shaw KC submitted that the conduct of litigation in the manner proposed by the wife was unheard of. Mr Shaw argued that the wife’s claims against the trustees, if valid, should be agitated at the one time, namely, at trial when all other claims between the parties were being fought. That way, so Mr Shaw KC submitted, all issues between all parties could be heard and determined at the one time. To do otherwise may risk the emergence of inconsistent findings. It may also produce the result that the trustees will wish to put forward other or different evidence on a point already heard to finality as between the husband and wife thereby leading to an unsatisfactory and potentially unfairly prejudicial outcome.
Of course, an additional issue arises on the wife’s proposal, namely, that the trustees’ interests would or may be affected by the trial conducted in their absence between the husband and the wife. To that, Mr Wilson submitted that the trustees were free at any time to seek orders for their own inclusion as parties to this litigation and if they chose not to exercise that option, then they did so at their own peril.
To my mind, such an argument inverted the concept of joinder of all necessary parties. If a party is necessary for the proper determination of all issues before the court, then that party is a necessary party who should be joined.
The wife seemed to want the best of both worlds by preserving her option of joining the trustees to this litigation but to do so only after the dust had settled in the main arena of contest once the trial between the husband and the wife had been heard and determined.
It must not be overlooked that the wife foreshadowed the joinder of the trustees leading to the appearance of Mr Shaw KC with various juniors on 24 October 2022 as the orders made by consent that day record. Since 24 October 2022 the parties have mediated, albeit unsuccessfully, and a full five months have elapsed since the trustees were put on notice that they may be respondents to this litigation. The wife now wants the trial conducted in the absence of the trustees yet she also wishes to preserve an entitlement to elect for their inclusion as parties after the trial. One would be entitled to think that the best time to hear from the trustees in their advancement of their best case in this litigation is at trial, not subsequent thereto.
It seems to me that the wife must make a decision on whether to include the trustees as parties to this litigation and to do so now. It is unsatisfactory and unfair for her to proceed to trial against her husband while concurrently and expressly segregating her claims against the trustees from this litigation only to enliven those claims after the trial as between the husband and the wife is over.
While I accept that the practice and procedure in this court differs in certain respects from the practice and procedure in common law state courts or in the Federal Court of Australia, it is a basal principle of law and practice in every court (statutory or common law) that all issues between all relevant parties should be heard and determined at the one time. The wife’s proposal is antithetical to that notion.
Mr Dickson KC, as senior counsel for the husband informed me that the time had been reached for orders to be made fixing this proceeding for trial. The wife seemed to support that concept subject to her wish to hive off and preserve for after trial any claim she may wish hereafter to agitate against the trustees. To my mind, if she wishes to agitate a claim against the trustees, she should do so ahead of trial.
In those circumstances, the wife must notify her intention of whether she –
(a)abandons her claims against the trustees; or
(b)whether she pursues them.
I will give her 14 days to decide.
I make the orders set out hereunder, namely –
(1)on or before midday on 17 April 2023 the solicitors for the wife must write to the solicitors for the husband and to the solicitors for the trustees stating whether she presses for orders for the joinder of the trustees as parties to this proceeding.
(2)if the wife elects to press for the joinder of the trustees, then –
(a)any such application must be filed and served by 4:00pm on 24 April 2023 together with all affidavit material in support thereof and written submissions;
(b)any response by way of opposition to that joinder application must be filed and served by midday on 8 May 2023 together with all affidavits and written submissions; and
(c)an interim defended hearing to determine the joinder application is fixed at 10:00am on 9 June 2023;
(3)if the wife’s solicitors inform the solicitors for the husband and the solicitors for the trustees that she elects not to pursue the application for the joinder of the trustees in accordance with paragraph one above, then I order this proceeding be listed for mention at 10:00am on Friday 21 April 2023 in the Major Complex Financial Proceedings List with a view to fixing the case for trial and for the making of trial directions.
I certify that the preceding 14 numbered paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson. Associate:
Dated: 4 April 2023
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