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A Bank & Coleiro

A Bank & Coleiro

Case [2011] FamCAFC 157 2 August 2011

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FAMILY COURT OF AUSTRALIA

A BANK & COLEIRO AND ANOR

[2011] FamCAFC 157

FAMILY LAW - APPEAL – where the Federal Magistrate made an order joining the bank to the property settlement proceedings between the husband and wife – where there was no application before the Federal Magistrate seeking that the bank be joined as a party to the proceedings – where the bank was not given notice of the proposed joinder order, or the opportunity to make submissions in relation to the proposed joinder order – appealable error found – appeal allowed – order set aside.

FAMILY LAW - APPEAL – where the Federal Magistrate made an order which purported to relieve the husband and wife from compliance with the provisions of s 121 of the Family Law Act 1975 (Cth) – where there was no application before the Federal Magistrate seeking such an order – where the Federal Magistrate did not provide the opportunity for the bank to be heard prior to the making of the order – where the Federal Magistrate failed to give reasons for the making of the order – appealable error found – appeal allowed – order set aside.

FAMILY LAW - APPEAL – where the Federal Magistrate made an order that the bank provide further material to the Court – where it was argued that the bank should not have to disclose further material to the Court until the determination of the bank’s application for summary dismissal of the wife’s amended application was determined – appeal allowed – order set aside.

FAMILY LAW - CONTEMPT – in face of the Court – observations made concerning the Federal Magistrate’s use of the contempt procedure against the husband.

Family Law Act 1975 (Cth) s 35, s 112AP, s 121
Family Court Rules 2004 r 6.02, r 21.08
Federal Magistrates Act 1999 (Cth) s 17
Federal Magistrates Court Rules 2001 r 11.01, r 11.02, r 19.01
High Court Rules 2004 r 11.01.2

AGF & LLS (2005) FLC 93-210
Bande & Cade [2011] FamCAFC 93
Bienstein & Bienstein [2001] FamCA 349
Clampett v Attorney-General (Cth) (2009) 260 ALR 462
Coward v Stapleton (1953) 90 CLR 573
Fraser v The Queen [1984] 3 NSWLR 212
Kendling and Anor & Kendling (Contempt) (2008) FLC 93-384
LGM & CAM (Contempt) (2008) FLC 93-355
Lewis v Judge Ogden (1984) 153 CLR 682
Rich v Attorney-Genera for the State of Victoria [1999] VSCA 14
Tate & Tate (2002) FLC 93-107
Wayne & Dillon & Anor [2008] FamCAFC 204
Witham v Holloway (1995) 183 CLR 525

APPELLANT:

A Bank

1ST RESPONDENT:

Ms Coleiro

2ND RESPONDENT:

Mr Coleiro

FILE NUMBER:

PAC

821

2011

APPEAL NUMBER:

2011

DATE DELIVERED:

2 August 2011

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Finn and Strickland JJ

HEARING DATE:

11 July 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT ORDERS DATE:

21 April 2011 and 14 June 2011

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Lethbridge SC and
Ms Barker

SOLICITOR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A Bank & Coleiro

Details

AGLC: A Bank & Coleiro [2011] FamCAFC 157
Case: [2011] FamCAFC 157
Decision Date: 2 August 2011

CaseChat Overview and Summary

In the matter of A Bank & Coleiro, the Federal Court of Australia addressed a series of orders made by a Federal Magistrate concerning a property settlement dispute between a husband and wife. The bank was unexpectedly joined as a party to the proceedings without an application being made, nor was the bank given notice or an opportunity to be heard, leading to an appeal. Additionally, the Federal Magistrate purported to relieve the husband and wife from compliance with section 121 of the Family Law Act 1975 (Cth) without an application or opportunity for the bank to be heard, and failed to provide reasons for the order, prompting further appeal. Lastly, the Federal Magistrate ordered the bank to provide further material to the court, which the bank argued should not be required until its application for summary dismissal was determined. The appeals against these orders were allowed, and the orders were set aside.

The legal issues at the heart of the appeals were whether the Federal Magistrate had the authority to join the bank to the proceedings without an application, and whether the bank was given adequate notice and an opportunity to be heard. Furthermore, the court examined if the Federal Magistrate's order relieving the parties from compliance with section 121 was valid, and if the requirement for the bank to provide further material was justified. The court found that the Federal Magistrate had erred in each instance, leading to the setting aside of the orders.

In setting aside the orders, the court emphasised that procedural fairness was not observed in the joinder of the bank, the lack of an application for the order relieving compliance with section 121, and the failure to give reasons for that order. The court also noted that the bank should not be required to provide further material until its application for summary dismissal was determined. Consequently, the court allowed the appeals, set aside the orders, and directed that the proceedings be continued before a different Federal Magistrate. Additionally, the court granted costs certificates to both the appellant and the first respondent, indicating that the Attorney-General may authorise payments for the costs incurred in relation to the appeals.

Orders

Orders of the court

(a) There be leave to appeal Order 6 of the orders made on 21 April 2011.

(b) The appeal against that order be allowed.

(a) There be leave to appeal Order 5 of the orders made on 14 June 2011.

(b) The appeal against that order be allowed.

(a) The appeal against Order 9 of the orders made on 14 June 2011 be

allowed.

(b) The order be set aside.

The hearing of the proceedings between the wife and the husband be continued before a Federal Magistrate other than Federal Magistrate Harman.

There be no order for costs in relation to the appeals initiated by the Notice of Appeal filed 27 June 2011.

The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under the Act to the appellant in respect of the costs incurred by them in relation to the appeals initiated by the Notice of Appeal filed 27 June 2011.

The Court grants to the first respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the first respondent in respect of the costs incurred by her in relation to the appeals initiated by the Notice of Appeal filed 27 June 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

A Bank & Coleiro [2011] FamCAFC 157

Most Recent Citation

Company B & Saddler [2023] FedCFamC2F 114

Cases citing this decision · 11 of 11 shown

Yong & Weng
[2024] FedCFamC1F 440 Para 14

…Her Honour referred at [54] to A Bank & Coleiro and Anor [2011] FamCAFC 157; saying that “while the facts were very different … the Full Court (Finn, Strickland JJ with whom Bryant CJ agreed) appear to endorse as relevant, whether the order against a third party was necessary”. However, that was a case where a (then)…
Olindo & Donati
[2023] FedCFamC2F 1367 Para 15

…the question of whether an order is sought against the party proposed to be joined has been described as a ‘critical consideration .’[7] [5] [2011] FamCAFC 157 at [101]-[102]. [6] Wayne & Dillon and Anor [2008] FamCAFC 204 at [11]. [7] Gormley & Gormley [2023] FedCFamC1F 296 at [38].…
Company B & Saddler
[2023] FedCFamC2F 114

…Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.09(1)(a), 10.09(1)(d) Cases cited: A Bank v Coleiro (2011) 252 FLR 359; [2011] FamCAFC 157 AH & SS (2005) 194 FLR 111; [2005] FamCA 854 Attorney-General v Observer Limited [1990] 1 AC 109 Company B v Public Trustee Bakarich v Commonwealth Bank of Australia…
Arnold & Arnold
[2021] FamCA 226 Para 26

…to the proceedings. It was held that the joinder was not necessary (at that time) as there were alternatives, other than joinder, available. [18] (2011) 252 FLR 359 (“ Coleiro”).…
Lukies v S2V Consulting Pty Ltd
[2018] FCCA 1431 Para 6

…In A Bank v Coleiro & Anor [2011] FamCAFC 157; (2011) 252 FLR 359 (“ Coleiro ”) the Full Court of the Family Court dealt with an appeal from the Federal Magistrates Court in relation to the joinder of a bank to family law proceedings, the appeal being on the basis that the bank had been denied natural justice or proc…
Becker and Vale and Ors
[2016] FCCA 3290 Para 3

…This approach was approved by the Full Court in A Bank & Coleiro & Anor[3] . [3] [2011] FamCAFC 157 at [101] and [102]…
Foster and Cotter and Anor
[2016] FamCA 1038 Para 10

…ning the removal of Mr Parks as a party pursuant to rule 6.04 of the Rules, the wife relies upon what the Full Court said at [19] in A Bank & Coleiro [2011] FamCAFC 157: … If the cause of action, recognisable at law, against a “third person” is particularised, then it is at least highly likely that joinder will be “n…
Khalid and Khalid (Intervener Application)
[2016] FCCA 2531 Para 24

…s Application. [38] A recent but quite general consideration of s.121(9) is in the joint judgment of Finn and Strickland JJ in A Bank v Coleiro (2011) 252 FLR 359 at [146] – [153]. The comments by the Full Court do not relevantly assist the discussion in this matter.…
Farrow and Byrnes
[2013] FCCA 2245 Para 9

…001] FamCA 348 and explained, consistent with the approach helpfully and thoroughly stated by the Full Court in Westpac Banking Corporation & Cutajar [2011] FamCAFC 157, that which would occur with the proceedings, the nature of the proceedings, that which was required to be proved and by whom, the standard of proof…
Tapper and McFarlane
[2013] FCCA 732 Para 5

…The Full Court of the Family Court has considered the terms of s.112AP on a number of occasions. In A Bank & Coleiro [2011] FamCAFC 157, the Chief Justice said: [13] In dealing with contempt under s112AP which is not for breach of an order, two important issues need to be considered. The first is that where there is…
WEIRS & WEIRS
[2012] FMCAfam 247 Para 1

…ect to and in the conduct of applications for contempt. The Full Court, and in particular the authoritative decision of Bryant CJ in A Bank & Coleiro [2011] FamCAFC 157 , sets out that which is to occur, commencing at paragraph 19 thereof. It establishes that the following process should be followed. “1. First, set o…

View all 11 citing cases →

Cases cited in this decision · 9 of 9 shown

Bande & Cade
[2011] FamCAFC 93 Para 15

…The contempt must be wilful (that is distinct from incidental) but not necessarily contumacious: Bande & Cade [2011] FamCAFC 93.…
Clampett v Attorney-General of the Commonwealth of Australia (No 2)
[2010] FCAFC 13 Para 16

…exceptionally and only where the broader interests of justice so require as such proceedings could be seen to diminish the authority of the Court: Clampett v Attorney-General (Cth) (2009) 260 ALR 462; AGF & LLS (2005) FLC 93-210 at [23]; Fraser v The Queen [1984] 3 NSWLR 212 per Kirby P and McHugh JA at 213, 224-225; Rich v Attorney-Gene…
Wayne & Dillon & Anor
[2008] FamCAFC 204 Para 5

…e ordered. In this regard the wife has also referred us to a helpful decision of Warnick J exercising appellate jurisdiction in Wayne & Dillon & Anor [2008] FamCAFC 204. His Honour said this (at [11]): It seems plain enough that under the rule joinder could be permitted even though no order was sought against a third…
Witham v Holloway
[1995] HCA 3 Para 13

…charge is made is criminal contempt. All proceedings for contempt whether civil or criminal must be proved beyond reasonable doubt: Witham v Holloway (1995) 183 CLR 525; Tate & Tate (2002) FLC 93-107.…
Lewis v Ogden
[1984] HCA 28 Para 14

…r should only be used sparingly and in the most extreme cases and the charge of contempt must specify the nature of the contempt: Lewis v Judge Ogden (1984) 153 CLR 682.…
Coward v Stapleton
[1953] HCA 48 Para 17

…iate procedure for hearing such matters provided for in the Rules of Court, but also failed to apply the principles referred to in Coward v Stapleton (1953) 90 CLR 573. At [27] the Full Court quoted from Coward v Stapleton : 27.Of particular relevance in this appeal is the leading statement of principle so far as co…
Rich v Attorney-General for Victoria
[1999] VSCA 14 Para 16

…93-210 at [23]; Fraser v The Queen [1984] 3 NSWLR 212 per Kirby P and McHugh JA at 213, 224-225; Rich v Attorney-General for the State of Victoria [1999] VSCA 14.…
Bienstein & Bienstein
[2001] FAMCA 349 Para 17

…In Bienstein & Bienstein [2001] FamCA 349 the Full Court of the Family Court (Ellis, Coleman and Rose JJ) held, in allowing the appeal in part, that the trial Judge erred in finding that the wife was in contempt of Court without first having caused her to be orally informed of the contempt with which she was charge…
[2009] FCAFC 151
[2009] FCAFC 151 Para 16

…broader interests of justice so require as such proceedings could be seen to diminish the authority of the Court: Clampett v Attorney-General (Cth) (2009) 260 ALR 462; AGF & LLS (2005) FLC 93-210 at [23]; Fraser v The Queen [1984] 3 NSWLR 212 per Kirby P and McHugh JA at 213, 224-225; Rich v Attorney-General for the…

Legislation cited in this decision · 7

Family Law Act 1975 (Cth)
35 2 mentions (from Para 1)
Family Law Rules 2004 (Cth)
21.08 2 mentions (from Para 7)
Federal Magistrates Act 1999 (Cth)
17 2 mentions (from Para 9)
Federal Magistrates Court Rules 2001 (Cth)
11.01 2 mentions (from Para 4)
Federal Proceedings (Costs) Act 1981 (Cth)
2 mentions (from Para 1)
High Court Rules 2004 (Cth)
11.01.2 2 mentions (from Para 12)
Family Court Rules 2004 (Cth)
6.02 1 mention