Cronin J in Whooten’s case referred to the traditional view about the extension of time set out in the judgment of McHugh J in Gallo v Dawson  HCA 30; (1990) 93 ALR 479 where his Honour said:
‘The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties….This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant.’
Referring to the judgement delivered by McHugh J in Gallo v Dawson, Cronin J in Whooten’s case said that in order to determine whether the rule would result in 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 extension of time’. … To deny the right to litigate would be an injustice. To suggest that she still had remedies at law through the state courts does not overcome the problem because the relief she could seek would most likely be very different based upon either the absence of being properly considered in a will or on the basis of some form of trust.
The Court said that the wife had had a clear intention to invoke the jurisdiction of the Court because she realised that the Husband may die. Chapter 24 [of the Family Law Rules 2004] could not be applied to work an injustice created as the result of a technicality.
The Court in Whooten’s case therefore considered that Rule 1.14 permitted the alteration of time in that case. The Court also referred to Rule 1.09 which provides that if the court is satisfied that a difficulty arises, or doubt exists, in relation to a matter of practice or procedure, it may make such orders as it considers necessary.
The Court therefore found that it “should treat the wife’s application as having been filed at the time that it was received by the court electronically”., ie, at 7:40pm and not the next day.
Whether an Application was commenced where no orders were sought
As the wife had not particularised any orders that she sought, the question arose whether the jurisdiction of the court had been invoked. Jurisdiction is enlivened where a party files an application seeking a matrimonial cause. Was the wife’s application seeking relief within the meaning of section 4 (1)(ca) of the Family Law Act 1975 (Cth) where the court exercise its jurisdiction in relation to “proceedings between the parties to a marriage with respect to the property of the parties to the marriage or either of them”? The Court considered that the wife’s application met that requirement where it referred to “Financial (Property and/or Maintenance” as the type of orders that she sought and the order that she sought was to be excused from pleading particular relief until she had received disclosure from the husband. The court said that her application then was “unashamedly seeking that there be a property settlement” and that she had invoked the jurisdiction of the court.
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