Bate v Priestley - [1990] HCATrans 20

IN THE HIGH COURT OF AUSTRALIA
Office of the Registry

Sydney No Sl22 of 1989
B e t w e e n -
JOHN EDWARD MURRAY BATE

Applicant

and
JENNY ORMOND PRIESTLEY

Respondent

Application for special
leave to appeal

MASON CJ
GAUDRON J
McHUGH J

Bate
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 16 FEBRUARY 1990, AT 3.52 PM
Copyright in the High Court of Australia

SlTlS/1/PLC 1 16/2/90
MR D.E. RYAN: If Your Honours please, I appear for the

applicant. (instructed by R.B. Kandy & Company)

MR R.G. CRAIGIE, QC: May it please Your Honours, I appear
with my learned friend, MR M.A. ELKAIM, for the

respondent. (instructed by F.E. Fischer & Co)

MR RYAN: Your Honours, could I start by saying that in
many ways the positive case that the applicant
seeks to argue before Your Honours has been set
out in the judgment of His Honour Mr Justice Kirby
and the factors that His Honour stress at pages 37
to 38 of the application book are those matters,
Your Honours, which the applicant relies upon to
support his contention that in this case what the
District Court had before it was a matrimonial

cause within the FAMILY LAW ACT. And it is the
fact as set out in His Honour Mr Justice Kirby's
judgment at the pages I have taken Your Honours to
that support, in the applicant's submission, the
argument that the majority in the Court of Appeal
fell into error in applying or purporting to apply
the decision of this Court in PERLMAN's case to
the matter before it.
MASON CJ: Now, what paragraphs do you say it comes within
in the definition of "matrimonial cause" in section 5?
MR RYAN: In section 4, if Your Honours please, as it was,
certainly, at the time. Your Honours will see
that Mr Justice Kirby ultimately held that it fell
within the definition of 4(l)(ca) of the Act.
That is to say, His Honour took the view that the
proceedings in the District Court,properly
categorized, were proceedings arising out

of the marital relationship, His Honour first
having held that they were parties to a marriage
and that the proceedings related to property of
one of them which, Your Honours, in the courts below
has been common ground between the parties.

MASON CJ: And that is (ca)(i)?

MR RYAN: Yes, if Your Honours please.
MASON CJ: What other paragraph?

MR RYAN: That is· the only paragraph His Honour Mr Justice Kirby
felt necessary to decide.

MASON CJ: Now, is that the only one that you rely on?

MR RYAN: No, Your Honours. We also rely upon subparagraph (c)
of the definition which relates to:
proceedings ..... with respect to the
maintenance of one of the parties to
the marriage.

SlTlS/2/PLC 2 MR RYAN 16 /2/90
Bate
And also, Your Honours, in the alternative,
to the definition in subparagraph (f) of the
definition by saying that the proceedings were -
if they did not fall within any of the…

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 Bate v Priestley

Details

AGLC: Bate v Priestley [1990] HCATrans 20
Case: [1990] HCATrans 20
Decision Date

CaseChat Overview and Summary

This matter concerned an application for special leave to appeal to the High Court of Australia. The applicant, John Edward Murray Bate, sought to appeal a decision of the Court of Appeal. The respondent was Jenny Ormond Priestley. The core of the dispute revolved around whether certain proceedings in the District Court constituted a "matrimonial cause" within the meaning of the *Family Law Act* (Cth).

The legal issues before the High Court were whether the proceedings in the District Court, which involved the enforcement of a deed between the parties, fell within the definition of a matrimonial cause under section 4 of the *Family Law Act*. Specifically, the applicant contended that the proceedings qualified under paragraph (ca)(i) as proceedings arising out of the marital relationship concerning property, and alternatively, under paragraph (c) concerning maintenance, or under paragraph (f) as proceedings with respect to pending or completed proceedings of a relevant kind. The applicant argued that the Court of Appeal erred in applying the decision of *Perlman's* case to the present matter.

The applicant's primary submission was that the proceedings were distinguishable from those in *Perlman's* case, which concerned an approved section 87 deed. The applicant argued that the approval of a section 87 deed under the *Family Law Act* had the effect of severing its ties to the Family Court system, whereas the deed in this case had not received the imprimatur of the Family Court. The applicant further contended that the deed mirrored a maintenance order that could have been made by the Family Court, thus establishing a sufficiently close connection to the marital relationship and maintenance obligations to fall within the definition of a matrimonial cause. The applicant relied on the reasoning of Mr Justice Kirby in the court below, who found the proceedings to fall within paragraph (ca)(i) of the definition.

Orders