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 |
| Charlick Trading Pty Ltd v Australian National Railways Commission & Anor (1997) 149 ALR 647 Waind v Hill & National Employers’ Mutual General Assoc. Ltd [1978] 1 NSWLR 372 |
| APPLICANT: | Ms Allison |
| FIRST RESPONDENT: | M & Co Pty Ltd |
| SECOND RESPONDENT: | Mr Bach |
| FILE NUMBER: | MLC | 4580 | of | 2011 |
| APPEAL NUMBER: | SOA | 49 | of | 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… |
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- Case
- [2014] FamCAFC 210
- Decision Date
CaseChat Overview and Summary
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
1.
The application in an appeal filed on 20 December 2013 be dismissed.
2.
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
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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