Anton & Malitsa (No. 2) - [2009] FamCA 242

FAMILY COURT OF AUSTRALIA

ANTON & MALITSA (NO. 2)

[2009] FamCA 242

FAMILY LAW – PRACTICE AND PROCEDURE – Adjournment – application refused

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Boyle v Ford Motor Co Limited [1992] 2 All ER 228
State of Queensland and Anor v JL Holdings Pty Ltd (1996-1997) 189 CLR 146
Sali v SPC Limited and Anor (1993) 116 ALR 625

APPLICANT:

MR ANTON

RESPONDENT:

MS MALITSA

FILE NUMBER:

DGF

928

2005

DATE DELIVERED:

30 March 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

30 MARCH 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR STRUM

SOLICITOR FOR THE APPLICANT:

TAUSSIG CHERRIE & ASSOCIATES

SOLICITOR FOR THE RESPONDENT:

MR LENNON, LENNON MAZZEO LAWYERS

ORDERS

That the application for the adjournment of the final hearing is refused.
That written reasons for judgment be provided as soon as practicable.

IT IS NOTED that publication of this judgment under the pseudonym Anton & Malitsa is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGF 928 of 2005

MR ANTON

Applicant

And

MS MALITSA

Respondent

REASONS FOR JUDGMENT

On 30 March 2009, the respondent wife applied for an adjournment of the final hearing of this matter. After hearing submissions from both sides and reading the respective applications and supporting material, I refused the application. At the time, I indicated I would later give reasons. These are those reasons.
Counsel for the wife indicated that this case was worrying and frustrating for the wife as well as the husband but importantly, she said that the wife wanted a fair and proper hearing. She said that matters that gave rise to the adjournment application were beyond the wife’s control.
This case began a number of years ago and the parties filed affidavit material in readiness for a final trial in 2006. For reasons that do not now matter, the trial did not proceed and it has taken this long for it to reach the final trial stage again.
I have managed this case during 2008 and specifically fixed it for trial. In addition to the preliminary hearing in which I canvassed with the parties the issues in dispute, I also made orders that the parties file their relevant material in readiness for trial.
I had a further hearing of the matter on 10 February 2009 at which time, a disclosure complaint was made by the wife and I made orders to enable the hearing to proceed.
The wife has not filed any further material in readiness for trial.
Counsel for the wife handed to me three authorities in support of the proposition that the wife was entitled to a fair and proper hearing. The first was Boyle v Ford Motor Co Limited [1992] 2 All ER 228. The headnote of that decision of Lord Donaldson of Lymington MR, Stocker and Farquharson LJJ is sufficient. It reads:
Although delay can impede justice and…

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 Anton & Malitsa (No. 2)

Details

AGLC: Anton & Malitsa (No. 2) [2009] FamCA 242
Case: [2009] FamCA 242
Decision Date: 30 March 2009

CaseChat Overview and Summary

The application before the Honourable Justice Cronin concerned a dispute between Anton and Malitsa (No. 2). The specific matter before the court was an application for an adjournment of the final hearing.

The primary legal issue before the court was whether to grant an adjournment of the final hearing. This required the court to consider the circumstances presented by the parties and weigh them against the principles governing the grant or refusal of adjournments in litigation.

Justice Cronin refused the application for adjournment. While the specific reasons for the refusal are to be provided in written reasons, the decision indicates that the court determined the grounds presented were insufficient to warrant delaying the final hearing. The court indicated that written reasons would follow.

Orders

Orders of the court

That the application for the adjournment of the final hearing is refused.

That written reasons for judgment be provided as soon as practicable.

Background

Background to the litigation

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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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