FAMILY COURT OF AUSTRALIA

pocock and anor & denton and anor	[2012] FamCA 3	

FAMILY LAW – PRACTICE AND PROCEDURE – ENFORCEMENT PROCEEDINGS in respect of eighteen year old orders – where a third party seeks to intervene in those proceedings – where third party seeks a stay of those proceedings pending determination of proceedings third party seeks to commence – intervention opposed – determined on similar principles to a summary dismissal application – cannot be said that proposed substantive action cannot possibly succeed – leave to intervene granted – pleadings ordered to be prepared – stay of enforcement proceedings granted	

Family Law Act (Cth) 1975 s 79A, s 92 
Family Law Rules 2004 Rules 1.04, 11.1, 11.10(1)(b)(i), 11.14, 20.07(g)	

Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Bigg v Suzi (1998) FLC 92-799
Pelerman & Pelerman (2000) FLC 93-037
Ferrall and   McTaggart as trustees for the Sapphire Trust and Ors & Blyton & Attorney-General of the Commonwealth (2000) FLC 93-054
Prior& Prior (2002) FLC 93-105	

1st APPLICANT:	Mr R Pocock	

2nd APPLICANT:	Mr D Pocock	

RESPONDENT:	Mr Denton	

INTERVENOR:	Ms F Pocock	

FILE NUMBER:	BRC	7338		of	2011	

DATE DELIVERED:	6 January 2012	

PLACE DELIVERED:	Brisbane	

PLACE HEARD:	Brisbane	

JUDGMENT OF:	Forrest J	

HEARING DATE:	20 December 2011	

REPRESENTATION

COUNSEL FOR THE APPLICANTS:	Mr Forde of Counsel	

SOLICITOR FOR THE APPLICANTS:	Holland & Holland Solicitors	

FOR THE RESPONDENT:	Mr Denton in person	

COUNSEL FOR THE INTERVENOR:	Mr Looney of Counsel	

SOLICITOR FOR THE INTERVENOR:	O'Reilly & Lillicrap
Solicitors	

Orders
(1)	That Ms F Pocock is given leave to intervene in these proceedings. 
(2)	That enforcement of paragraph 5 of orders of this Court made on the 23rd day of August, 1993 is stayed until further order. 
(3)	That on or before Tuesday 31 January, 2012, the Intervenor file and serve on each of the other parties an affidavit annexing a pleading in the form of Points of Claim in which is set out each and every fact and particular upon which she relies and the relief she seeks in these proceedings and, in which affidavit, she swears or affirms the truth of the facts and particulars contained in the Points of Claim.
(4)	That should the relief the Intervenor seeks in these proceedings, as particularised in the Points of Claim referred to in paragraph 3 hereof, include relief pursuant to s.79A of the Family Law Act 1975 in respect of the orders of this Court made on the 23rd day of August, 1993, the Intervenor shall also serve a sealed copy of the said affidavit annexing the pleading on Ms Y Pocock on or before Tuesday 31 January, 2012 and the said Ms Y Pocock shall become a respondent in these proceedings. 
(5)	That within twenty-one (21) days of service upon them of the Intervenor’s affidavit annexing the Points of Claim, the Applicants, the First Respondent and the said Ms Y Pocock (should she be made a respondent by the actions of the Intervenor) shall each file and serve an affidavit annexing a pleading in the form of Points of Defence in which is set out each of their responses to each fact contained in the Points of Claim (and in respect of any such fact not admitted, the factual basis for the non-admission), together with each and every other fact and particular upon which each of them relies in defence of the claim and the relief which each of them seeks and, in which affidavit, each swears or affirms the truth of the facts and particulars contained in the Points of Defence.
(6)	That the matter be listed before me for further directions at 9:30 am on Wednesday 29 February, 2012.

IT IS NOTED that publication of this judgment under the pseudonym Pocock and Anor & Denton and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Family Court of Australia at Brisbane	

FILE NUMBER: BRC 7338 of 2011

Mr R Pocock and Mr D Pocock 	
Applicant

And

Mr Denton 	
Respondent

REASONS FOR JUDGMENT
What is the Court required to decide? 

1.	On 23 August, 1993, in the Melbourne Registry of this Court, orders were made by Frederico J with the consent of Mr A Pocock (“the husband”), Ms Y Pocock (“the wife”) and Mr R Pocock and Mr D Pocock (the intervening adult sons of the husband and the wife) effecting property settlement between them all. 

2.	By certain paragraphs of those orders, the husband was obliged, forthwith upon the making of the orders, to transfer, unencumbered, a property situated at Town 1, Queensland, that was registered in his sole name, to Mr R and Mr D Pocock in return for a life estate in the said property.  

3.	The transfer of the property from the husband to Mr R and Mr D Pocock did not occur forthwith upon the making of the orders in 1993. It has not occurred to this day. 

4.	The husband died in February, 2011. His wife at the time of his death, Ms F Pocock, was made, by his last will, the sole executrix of his estate. Soon after the husband’s death, Ms F Pocock relinquished the role of executrix of the estate in favour of her son, Mr Denton. 

5.	Mr R and Mr D Pocock then asked Mr Denton to effect the transfer of the Town 1 property to them in accordance with the 1993 order. He would not do so. 

6.	On 23 August, 2011, Mr R and Mr D Pocock filed an Initiating Application in this Court naming Mr Denton as executor of the estate of the husband as the respondent. They seek enforcement of the 1993 orders for transfer of the Town 1 property to them. 

7.	On 21 September, 2011, Ms F Pocock filed an Application in a Case in the proceedings that Mr R and Mr D Pocock had commenced. In that, she sought to be given leave to intervene in the enforcement proceedings, she sought to have the enforcement proceedings temporarily stayed and she also sought equitable relief in respect of the Town 1 property, claiming a one-third beneficial interest in it. 

8.	By order made 22 September, 2011, by a Registrar of this Court, Ms F Pocock’s Application in a Case was listed to a Short Cause Hearing before me on 20 December, 2011. 

9.	Ms F Pocock filed an Amended Application in a Case on 19 December, 2011, in which she still seeks to be given leave to intervene in the enforcement proceedings but in which she now seeks a stay of the enforcement proceedings pending the determination of any application filed by her in which she seeks relief pursuant to s.79A of the FLA in respect of the 1993 orders or pending the determination of any proceeding filed by her in the Queensland Supreme or District Court in which she seeks equitable relief. 

10.	At the hearing on 20 December, 2011, Mr R and Mr D Pocock submitted that the Court should disallow the amendment to the Application in a Case pursuant to Rule 11.14 of the Family Law Rules 2004 and dismiss Ms F Pocock’s original Application in a Case.  I do not intend to do either of those things. 

What does the Court decide to do? 

11.	I intend to give Ms F Pocock leave to intervene in the enforcement proceedings. I intend to stay the enforcement of the 1993 orders for the time being and to require Ms F Pocock to properly plead and particularise the relief she seeks from this Court in these proceedings as well as the factual and legal basis upon which she seeks such relief. Mr R and Mr D Pocock, and their mother, if she is made a respondent by the actions of Ms F Pocock, and Mr Denton as executor of the husband’s estate, will all have the opportunity then to plead in response. I will list the matter for further directions on a date after the time within which all that is to be done has expired. 

Why does the Court decide to do this? 

12.	By her original Application in a Case, Ms F Pocock sought a mix of orders, some which were clearly interim in nature (eg. leave to intervene and the stay application) and some which were clearly in the form of final relief (eg. equitable relief in the form of a declaration of trust and consequential orders). 
 
13.	In circumstances that are not completely known or understood by me, the entirety of the Application in a Case was listed for what was described as a “Short Cause Hearing” before me by the Registrar who had responsibility for managing the matter after it was first filed. On the day it was listed for that hearing other matters were listed before me for interim determination. So, too, was a contravention application in parenting proceedings where both parties were self represented and in high conflict. 

14.	Even if it was considered the appropriate course to take in all the circumstances, it was not possible on the day of the hearing to embark on that which Mr R and Mr D Pocock apparently came prepared for, namely, a complete hearing of Ms F Pocock’s Application in a Case, including her claim for final equitable relief. There was simply no time for such a hearing in which counsel for Mr R and Mr D Pocock sought to cross-examine Ms F Pocock and, in any event, having made the amendment to her Application in a Case, Ms F Pocock and her legal representatives were not prepared that day to argue the case for any form of final relief. They were not seeking it that day. 

15.	Given that Rule 11.10(1)(b)(i) of the Family Law Rules 2004 permits amendment of an Application in a Case “at or before the first court date”, I do not consider it unreasonable of Ms F Pocock’s legal representatives, particularly counsel who appeared for her, who had only just come into the matter and who apparently considered the amendments appropriate, not to have been ready for a hearing of those parts of the original Application in a Case that sought final equitable relief. Ms F Pocock and her legal representatives were clearly only there at the hearing on 20 December, 2011 to argue for the orders they were seeking on an interim basis. 

16.	It is correct that the Court has power pursuant to Rule 11.14 to disallow an amendment of a document.  That discretionary power is broad. The example given in the Rules for the exercise of the power is if the amendment is frivolous, vexatious or not in accordance with these Rules or an order.  Clearly, it is not limited to those circumstances but is to be exercised bearing in mind the main purpose of the Rules set out in Rule 1.04 which is to ensure that each case is resolved in a just and timely manner at a cost to the parties and the Court that is reasonable in the circumstances of the case. 

17.	Counsel who appeared for Mr R and Mr D Pocock at the hearing referred to the High Court’s decision in Aon Risk Services Australia Limited v Australian National University in support of the submission that the amendment of the Application in a Case should not be allowed. His submission was that the non-wasting of public resources, the avoidance of undue delay and consideration of the strain the litigation was taking on his clients were relevant factors to consider in exercising the discretion to disallow the amendment. 

18.	However, counsel went on to submit that the amendment was not necessary to determine the real issue in the case, which was whether Ms F Pocock was entitled to the equitable relief that she ultimately seeks. 

19.	In that regard, although her Application in a Case was amended so as to delete the original claim for final equitable relief, it remains tolerably clear from her Amended Application in a Case, the affidavit evidence that she has filed to date and her own counsel’s written submissions that Ms F Pocock will still be likely to be seeking equitable relief as part of the final relief she will be seeking in this Court or in a Queensland court. In addition, it appears that she will, at least, be asking this Court to set aside parts of the 1993 order of this Court pursuant to s.79A of the FLA. Accordingly, counsel’s submission, that the real issue remains whether Ms F Pocock is entitled to the equitable relief that she ultimately is likely to be seeking, had merit to it. It was to that issue that counsel for Mr R and Mr D Pocock principally addressed the weight of his submissions at the hearing. He also addressed submissions to the prospects of any application brought by Ms F Pocock for final relief pursuant to s. 79A. His submissions were, effectively, that Ms F Pocock had no prospects of success either pursuant to s.79A of the FLA or in respect of her ultimate claim for equitable relief. 

20.	In effect, the submissions made by counsel for Mr R and Mr D Pocock were akin to those that would be made in support of an application for summary dismissal of any claim Ms F Pocock makes to a right to relief pursuant to s.79A of the FLA and/or in equity. Counsel submitted to the Court, in effect, that it did not matter which Application in a Case Ms F Pocock was being heard on, she should be refused leave to intervene in the enforcement proceedings at the outset as she has no prospects of success in respect of any of the claims for final relief currently identified as likely to be pursued by her.

21.	For that reason, I consider it not at all unreasonable to have allowed the amendments to the Application in a Case to stand and to proceed to hear Ms F Pocock’s Amended Application in a Case in which she was seeking orders of an interim nature only. 

22.	In circumstances where counsel for Mr R and Mr D Pocock submitting that it did not matter that Ms F Pocock amended her Application in a Case, as the ultimate question for determination remained the same and that the ultimate question could not possibly be decided in her favour, I did not discern any prejudice to Mr R and Mr D Pocock in proceeding on the Amended Application in a Case. The fact that I was not going to be able to embark on a final hearing of any claim for final relief by Ms F Pocock strengthened my view in respect of this. 

23.	Accordingly, I determined that I was hearing Ms F Pocock’s application for leave to intervene and for the enforcement of the 1993 orders to be stayed so that she could file proceedings for final relief in this Court and, potentially, in a Queensland court, all of which was being opposed on grounds that any proceedings she brings for final relief have no prospects of success. 

24.	The Court has power, pursuant to s.92 of the FLA, to make an order entitling a person who applies for leave to intervene to so intervene. Any such order may be made upon such conditions as the Court considers appropriate. 

25.	There is no limitation imposed by the section (save for in respect of divorce or validity of marriage proceedings) as to who may apply to intervene or what questions they may apply to intervene about. There can be no doubt that the right to apply to intervene is available to third parties who are affected personally by the proceedings so that they may seek to protect their own interests. 

26.	In this instance, Ms F Pocock was living with the husband from some time in or around 1986/1987, eventually marrying him in 2001. The evidence establishes that the Town 1 property was purchased in 1989 and that Ms F Pocock and the husband lived in it from that time onwards and were living in it in 1993. 

27.	The property was purchased for $92,500. Ms F Pocock’s evidence is as follows:

•	She and the husband purchased the property together, although it ultimately came to be registered in the husband’s name, on legal advice 
•	She contributed $33,000 of her money towards the purchase, that the husband contributed $30,000 and $36,000 was borrowed by them from a trust arising from property that the husband’s deceased mother had left on her death, on trust for Mr R and Mr D Pocock, the husband to have a life interest
•	A mortgage was given in favour of the trust securing the borrowed sum
•	The husband then became involved in property division proceedings in this Court with his first wife, Ms Y Pocock
•	Mr R and Mr D Pocock then intervened in those proceedings and the proceedings were transferred to the Melbourne Registry from the Brisbane Registry
•	Melbourne solicitors and a Melbourne barrister were engaged to act in those proceedings representing the husband and settlement was recommended
•	Neither she nor the husband were at the actual scene of the hearing which resulted in the 1993 orders but the solicitors came to where she and the husband were waiting with “comments, offers and counter offers, paperwork etc.”
•	The husband settled out of court
•	She and the husband were told they were no longer required and could go home and that the lawyer would take care of everything
•	Her understanding of the final position was that the husband would sign over his and the trust’s share of the Town 1 property to Mr R and Mr D Pocock then, rather than waiting until the husband’s death 
•	She believed that if the husband died before her, she would then become a joint owner with Mr R and Mr D Pocock
•	She later learned that the husband had somehow agreed to give the property to Mr R and Mr D Pocock in return for a life interest
•	They were told that to attempt to change anything would mean a full blown court case with expensive lawyers
•	To re-visit the mess would have meant that she would have had to involve or pursue the husband in legal proceedings and she could not contemplate that
•	The orders were never put into effect and, to her recollection, they were never pursued by Mr R and Mr D Pocock
•	The husband told her before he died that he was adamant that he was not doing anything else about the transfer of the property unless her share was retained
•	She was, therefore, not surprised when she learned after the husband’s death that the Town 1 property was still in the husband’s name
•	She requested her son, Mr Denton, not to transfer her part of the property 
•	She claims a one third interest in the property due to the direct financial contributions she has made towards the purchase of the Town 1 property and its ongoing maintenance
•	There is documentary evidence corroborating her own evidence that she contributed funds to the purchase, at least to the sum of $21,000.

28.	Counsel for Ms F Pocock submitted that this evidence supports the view that Ms F Pocock had an equitable interest in the Town 1 property in 1993. He further submitted that her evidence supports a view that her interest was not taken into account by the parties to the 1993 consent order such that there was a miscarriage of justice sufficient to enliven the Court’s discretion to vary or set aside the order. He submitted that notwithstanding the delay in taking any remedial steps, that no steps were taken by Mr R and Mr D Pocock to enforce the orders earlier, a matter relevant to the exercise of the Court’s discretion, once enlivened, and also, potentially, to the laches defence that Mr R and Mr D Pocock raise to the equitable claim. 

29.	There is substantial dispute about much of the evidence of Ms F Pocock. Mr R and Mr D Pocock put a great deal of evidence before the Court that casts quite a pall of doubt over the evidence of Ms F Pocock. In particular, by leave on the morning of the hearing, they relied on an affidavit to which is attached a letter said to have been written by Ms F Pocock in March, 1998 in which the following appears:-

This property was purchased by [the husband], [Ms J Pocock Estate] and myself. Despite this, when legal action commenced against their father, I agreed that in order to reduce the dreadful strain on [the husband], we would hand the property over to [Mr R and Mr D Pocock] – at that time I refrained totally from any claim, in regard to this house and all other contributions. However, I also am concerned now that [the husband] and I lack security and am prepared for us to buy back our peace of mind – which would at the same time allow them to invest in an asset of their own choosing. 
 
30.	Counsel for Ms F Pocock objected to the affidavit being read. He informed the Court that Ms F Pocock had no time to respond to it and that she would be prejudiced by it being read given that she had instructions to give in response to it. I determined to let it in and no adjournment was sought for Ms F Pocock.  The content of that evidence and other untested evidence of Mr R and Mr D Pocock, in addition to the thoroughly comprehensive and well prepared submissions of counsel who appeared for them, gives rise to serious concerns, at this preliminary stage, as to the ultimate prospects of success of Ms F Pocock’s claims for final relief. 

31.	However, I determined that the most appropriate way to approach the matter before me was to consider it as I would consider an application for summary dismissal of substantive proceedings. After all, as I have said, that is effectively the position that was being advanced on behalf of Mr R and Mr D Pocock. 

32.	The Court clearly has power to summarily dismiss. It is, though, a power to be used sparingly. It is to be used only when the proceedings cannot possibly succeed. Furthermore, an application for summary dismissal is to be approached having regard to the evidence sought to be adduced by the party whose application is sought to be summarily dismissed. Having regard to Ms F Pocock’s evidence and given the factual disputes between the parties, in addition to the fact that her case for substantive relief is not yet finally pleaded on her behalf, I cannot say with satisfaction that I conclude that she cannot possibly succeed in respect of the claims for substantive relief that it is anticipated she will be making in this Court. It is not enough to say that I consider that her case is likely to be a weak one or that I assess the prospects of success to be poor. I have to conclude that it cannot possibly succeed, that it is doomed to fail. I cannot do that at this point in time. 

33.	Accordingly, considering, on her evidence at its best, that Ms F Pocock makes out a case for potential substantive relief, I have determined to give her leave to intervene in the enforcement proceedings. However, I consider, in the circumstances, the other parties and the Court are entitled to know at the earliest opportunity the precise relief Ms F Pocock seeks in her substantive proceedings, as well as the material facts and particulars and precise legal basis upon which she says her entitlement to such substantive relief is founded. 

34.	There was no dispute between the parties as to the Court’s power to stay the enforcement proceedings. It is a discretionary power, arising out of the Court’s inherent power to control its own process as well as being expressly referred to in Rule 11.1 and Rule 20.07(g) of the Family Law Rules 2004.

35.	Counsel for Ms F Pocock submitted that the same type of matters are to be considered in the discretionary exercise as are regarded as appropriate to consider in determining an application for a stay pending an appeal. I accept the general merit of that submission. 

36.	Counsel for Mr R and Mr D Pocock submitted that even if the Court gives Ms F Pocock leave to intervene in the enforcement proceedings they should not be stayed as Mr R and Mr D Pocock are entitled to the “fruits” of the 1993 orders in their favour. Whilst that is an oft-stated, accepted principle, in this instance Mr R and Mr D Pocock have taken no steps to enforce the orders themselves for nearly 18 years. Of course, it is only on the death of the husband that Mr R and Mr D Pocock’s beneficial interest in the property is of any substantial benefit to them and they now seek to marry the legal interest with that beneficial interest so as to partake of the “fruits” of the 1993 orders. However, Ms F Pocock apparently intends to seek to have the orders for transfer set aside pursuant to s.79A. If that was successful, it would deprive Mr R and Mr D Pocock, at least at first blush, of the beneficial interest conferred on them by the making of the order. I accept the submission of her counsel that such relief, as likely to be sought by her, would be rendered, at least far less likely to be achieved, if not completely nugatory, if the 1993 orders are enforced at this point. I do not accept the submission of counsel for Mr R and Mr D Pocock to the contrary.  I consider this fact alone weighty enough to justify staying the enforcement of the 1993 order at this point in time. 

37.	The property is currently rented to tenants. Mr R and Mr D Pocock include in their application for enforcement, a claim to be equitably compensated in respect of income that the property is generating that they have been deprived of since their request for transfer of the property was refused. If Ms F Pocock’s claims for substantive relief are unsuccessful, there might be merit in such claims.  Ms F Pocock will now be required to properly plead her case. As I have said, there are immediate concerns about the ultimate strength of her case. Mr R and Mr D Pocock, of course, have the right to again apply for summary dismissal of her substantive proceedings after her pleading is filed, if it is considered that they might then be able to persuade the Court that her substantive claim, as pleaded, cannot possibly succeed. If that does not happen, I expect the matter could come to trial in the second half of this year. That is not intolerable delay. 

38.	I am not satisfied on the evidence currently before me that there is such prejudice to be caused to Mr R and Mr D Pocock by staying enforcement of the 1993 orders that mitigates sufficiently against granting the stay. Enforcement will be stayed for the time being. 

39.	Finally, counsel for Ms F Pocock submitted that I should make attendance of the parties at a private mediation a condition of allowing the intervention. He boldly submitted that should happen before his client is required to plead her case. Whilst mediation conducted by an experienced mediator, well conversant in the legal issues that are relevant in this dispute, is a worthy and desirable form of attempting to resolve the dispute currently existing between these parties, I consider it would be grossly unfair to the other parties to the proceedings to order them to a mediation in the absence of a proper understanding of the exact case that Ms F Pocock presents and expects them to meet. I will not make orders that require private mediation. Of course, once the pleadings are finalised, should the parties agree to participate in a private mediation, a far more timely resolution of the matters that remain in dispute between them all may be able to be achieved than if they await a final hearing and judgment in this Court. That is a matter for them. 

40.	I make the orders set out at the beginning of this judgment.

I certify that the preceding forty (40) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 6 January 2012.

Associate:  

Date:  6 January 2012