Mcphee Lawyers


07 March 2018

Rules of the Court cannot be instruments of injustice


In the case of Whooten v Frost [2017] FamCA 975, the Court was asked to consider whether it had jurisdiction to determine the Wife’s application for property Orders in circumstances where:-


  • The Wife’s application was filed electronically at 7.40pm after the Court Registry had closed;
  • Having suffered a serious farming accident, the Husband died only hours after the application was filed;
  • Rule 24.05 of the Family Law Rules states that “a document that is sent for filing by electronic communication after 4:30pm according to legal time in the Australian Capital Territory is taken to have been received by the filing registry on the next day when the filing registry is open”;
  • The Order sought by the Wife in her application did not seek a property adjustment and instead sought to be excused from pleading particularised relief until after disclosure had been provided by the Husband. The solicitors representing the estate of the Husband argued that the Wife could not amend her application to particularise Orders seeking property adjustment because the cause of action abated with the Husband’s death.


Cronin J said:

Section 79(8) of the Act provides that where property proceedings have not been completed and a party dies, they may be continued subject to certain conditions that are not immediately relevant here. It is fundamental that prior to the death of a party, ‘property settlement proceedings’ have been ‘instituted’ so that they may be ‘continued’.


Cronin J then referred to the High Court decision of Gallo v Dawson [1990] and the principal that Rules which fix times for doing acts should not become instruments of injustice. In that decision, Justice McHugh said that in order to determine whether the Rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for the extension of time.


After considering how those principles applied in relation to the case before the Court, Judge Cronin concluded that chapter 24 of the Rules cannot work an injustice created as the result of a technicality. Such a technicality would impede a just outcome. In the circumstances, the Court determined that it should treat the Wife’s application as having been filed at the time it was filed with the Court electronically and not the next day as suggested by the Rules. The Court was able to do so as Rule 1.14 permits discretion to shorten or extend time under the rules. As such the Wife was able to pursue her application for property adjustment against the estate of the Husband.


While the Court did exercise discretion to extend time under the Rules in this case it is important to remember that failing to comply with limitation periods and other critical dates can result in one party losing their ability to seek relief from the Court.


If we can assist you with your property matters, or any other matter, please contact us for an appointment with one of our solicitors today.

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