Allison and M and Co Pty Ltd & Anor - [2014] FamCAFC 210

FAMILY COURT OF AUSTRALIA

ALLISON & M & CO PTY LTD AND ANOR

[2014] FamCAFC 210

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – SUMMARY DISMISSAL – where the applicant seeks that the Notice of Appeal filed by the first respondent be summarily dismissed – where the applicant asserts that the appeal has no reasonable prospects of success – where a consideration of each of the grounds of appeal is required – where it is found that the appeal has reasonable prospects of success – application for summary dismissal of the appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO APPEAL – where in the event that the applicant is unsuccessful in having the appeal summarily dismissed she seeks to have the first respondent’s application for leave to appeal summarily dismissed – where it is curious that in the context of the appeal having been found to have reasonable prospects of success the application for leave to appeal is challenged – where it must be demonstrated that there has been an error of principle and/or a substantial injustice caused to one of the parties – where it is arguable that there has been a substantial injustice caused and there has been an error of principle – where there are reasonable prospects of success – application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where if the application is unsuccessful the first respondent seeks an order for costs on a party/party basis – where the applicant concedes that such an application cannot be opposed – order for costs made in the terms sought.

Family Law Act 1975 (Cth) – ss 93A(2) & 96AA
Federal Court of Australia Act 1976 (Cth) – s 31A
Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011

Charlick Trading Pty Ltd v Australian National Railways Commission & Anor (1997) 149 ALR 647
FuelXpress Ltd v LM Ericsson Pty Ltd (1987) 75 ALR 284
Lindon v Commonwealth of Australia (No. 2) (1966) 136 ALR 251
Ostasheen Pty Ltd v The Deputy Registrar of Child Support (1998) 23 Fam LR 220
Rutherford & Rutherford (1991) FLC 92-255
Spencer v The Commonwealth (2010) 241 CLR 118

Waind v Hill & National Employers’ Mutual General Assoc. Ltd [1978] 1 NSWLR 372

Webster v Lampard (1993) 177 CLR 598

APPLICANT:

Ms Allison

FIRST RESPONDENT:

M & Co Pty Ltd

SECOND RESPONDENT:

Mr Bach

FILE NUMBER:

MLC

4580

2011

APPEAL NUMBER:

SOA

2013

DATE DELIVERED:

31 October 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

28 February 2014

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

4 July 2013

LOWER COURT MNC:

[2013] FCCA 661

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Swann

SOLICITORS FOR THE APPLICANT:

AIF Lucas & Co

COUNSEL FOR THE FIRST RESPONDENT:

Mr Guthrie

SOLICITOR FOR THE FIRST

RESPONDENT:

Whitehead Summons

SOLICITORS FOR THE SECOND RESPONDENT:

Malkin Lawyers – took no
part…

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.

Keep reading for free

Create a free CaseChat account to read Allison and M and Co Pty Ltd & Anor and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] FamCAFC 210
Decision Date: 31 October 2014

CaseChat Overview and Summary

In the case of Allison and M and Co Pty Ltd & Anor, the dispute involved an appeal in family law matters. The applicant sought the summary dismissal of the Notice of Appeal filed by the first respondent, arguing that the appeal had no reasonable prospects of success. The court was required to consider each ground of appeal to determine whether the appeal had reasonable prospects of success.

The court found that the appeal did indeed have reasonable prospects of success. Consequently, the application for the summary dismissal of the appeal was dismissed. The applicant also sought to have the first respondent’s application for leave to appeal summarily dismissed. Despite the appeal being found to have reasonable prospects of success, the application for leave to appeal was challenged. The court held that if there is an arguable substantial injustice and an error of principle, there are reasonable prospects of success. Hence, this application was also dismissed.

In the event that the applicant was unsuccessful in having the appeal summarily dismissed, the first respondent sought an order for costs on a party/party basis. The applicant conceded that such an application could not be opposed. Therefore, an order for costs was made in the terms sought by the first respondent, with the costs to be assessed in default of agreement.

Orders

Orders of the court

The application in an appeal filed on 20 December 2013 be dismissed.

The applicant pay the costs of the first respondent of and incidental to the application in an appeal filed on 20 December 2013 such costs to be as assessed in default of agreement.

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.