DISTRICT COURT OF QUEENSLAND

1. [1]
   There are two applications before the Court. The first in time is the plaintiff’s application in paragraph 1 of his Statement of Claim that he be granted leave to apply pursuant to s. 288(1)(b) of the Property Law Act 1974 for an order adjusting interests in the property of the parties who lived as de facto spouses for a period in excess of two years commencing in or about December 1996. The plaintiff is unable to recall the actual date on which the de facto relationship ended, except to say that it was “in or about June” in the Statement of Claim and “the latter part of June” in his one paged affidavit sworn today and filed by leave. The second application in time is the defendant’s application to strike out the plaintiff’s claim “on the grounds that the plaintiff had failed to obtain leave pursuant to s. 288(1)(b), to bring his proceedings”. The defendant says that the de facto relationship ended in May 2000 and, as the plaintiff’s claim was not filed until the 20^th June 2002, it should be struck out.

2. [2]
   Mr Martin for the defendant submits that there is no application for leave before the Court today as no oral application has been made. As the second of the plaintiff’s affidavits sworn today and filed by leave was only served today, he is not in a position to meet an application for leave pursuant to s.288(1)(b).

3. [3]
   Section 283 of the Property Law Act 1974 is in these terms:

“283   De facto spouse may apply

After a de facto relationship has ended, a de facto spouse may apply to a court for an order adjusting interests in the property of either or  both of the de facto spouses.”

4. [4]
   Section 288 of the Property Law Act 1974 is in these terms:

“288Time limit for making application

1. (1)
   A court may make a property adjustment order only if –

1. (a)
   the application was made within 2 years after the day on which the de facto relationship ended; or

2. (b)
   the court has given the applicant leave to apply.

2. (2)
   The court may give leave only if it is satisfied hardship would result to the applicant or a child of the de facto spouses if leave were not given.”

5. [5]
   Not surprisingly, the wording of s. 288 draws on the language of the Family Law Act 1975 which provides time limits for the institution of applications of the type contemplated by s. 283 of the Property Law Act 1974 (see s. 44(3) and (3A)). Section 44(4) provides:

“44(4) The court shall not grant leave under subsection (3) or (3A) unless it is satisfied:

1. (a)
   hardship would be caused to a party to the relevant marriage or a child if leave were not granted; …:”

6. [6]
   Neither counsel has been able to refer me to any case in the Supreme or District Court which deals with the proper construction of ss. 283 and 288. This is unsurprising as Part 19 of the Act was only introduced into the Act in 1999. It follows that the developed law in the Family Court of Australia in relation to s. 44(4) is of considerable persuasive force in considering an application for leave to apply pursuant to s. 288(1)(b). The leading authority appears to be Whitford v. Whitford (1979) FLC 90-612 78; (1979) 4 Fam LR 754. In Neocleous v. Neocleous (1993) FLC 92-377, 16 Fam LR 557 at paragraph 12 of the judgment of Lindenmayer J His Honour said:

“The meaning of the word “hardship” in s. 44(4) has been the subject of some discussion in earlier cases decided under this section, but the generally accepted meaning now is “a substantial detriment”: see Whitford v. Whitford at (FLC) 78; 144 … However it is clear from many cases that “hardship” is a relative term, and that there is no absolute measure of it. What amounts to “a substantial detriment” depends on the circumstances of each particular case. While the existence of a reasonable claim to relief under s. 79 is obviously a necessary ingredient of hardship, it has been held that the mere loss of the right to litigate that claim is not itself hardship.”

7. [7]
   Mr Martin’s argument is ultimately a simple one. He submits that as a matter of construction, an application for leave to apply pursuant to s. 288(1)(b) must precede any application for property adjustment pursuant to s. 283. In other words, an applicant must first of all persuade a Court to grant leave by satisfying the onus upon him or her in s. 288(2); and then and only then if that application is successful can the application pursuant to s. 283 be made. Ms Sweetapple submits that the section relating to jurisdiction to determine such applications is s. 288 and the proper construction of s. 288, particularly the opening words:

“(1)  A court may make a property adjustment order only if - …”

clearly contemplates the hearing of the leave application at the same time as the property adjustment application, as is the practice in the Family Court. I am inclined to agree with her submission; particularly in this case where the plaintiff’s instructions as to the date of cessation of the de facto relationship are uncertain. It may be that on a hearing the plaintiff may not need to apply for leave. As it appears that the prospects of success or to use the words of Lindenmayer J in Neocleous “the existence of a reasonable claim to relief” is a relevant factor in determining the issue of hardship, it is clear to me that the drafters of s.288 did not contemplate a separate leave hearing in which some of the same evidence to be ventilated at the trial, would be relied upon. In those circumstances, it seems to me that the plaintiff’s solicitors had no choice but to make the application for leave at the same time as the claim was filed.

8. [8]
   The defendant’s application to strike out is made pursuant to the Uniform Civil Procedure Rules. In reaching the conclusions I have, I have borne in mind the terms of r. 5 UCPR which deals with the philosophy behind the Rules.

9. [9]
   It follows that the application to strike out the plaintiff’s claim is dismissed with costs.

10. [10]
    That leaves the plaintiff’s application. Mr Martin seeks an adjournment of that application to enable him to obtain proper instructions and, if necessary, to respond to the plaintiff’s second affidavit filed today. It surprises me that the defendant did not anticipate such an application as it is set out in paragraph 1 of the claim and a number of the factual pleadings are prima facie relevant to the exercise of discretion pursuant to s. 288(1)(b) and (2). To save expense and costs, Ms Sweetapple does not oppose the application for an adjournment but submits that her client’s leave application (if necessary) be adjourned to the hearing of the trial. That seems to me to be a sensible proposal, and I order that he plaintiff’s application for leave to apply be adjourned to a date to be fixed to be heard at the time of the trial of the plaintiff’s claim pursuant to s. 283; the costs of that application are reserved for the trial judge.