Benjamin and Bardot - [2009] FamCAFC 241

FAMILY COURT OF AUSTRALIA

BENJAMIN & BARDOT

[2009] FamCAFC 241

FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – APPLICATION FOR ADJOURNMENT – Adjournment opposed – Counsel unavailable to present the matter on the date listed – Issue of availability not a mistake, or the fault, of the parties – Adjourned until a later sitting of the Full Court

APPELLANT:

Mr BENJAMIN

RESPONDENT:

Ms BARDOT

APPEAL NUMBER:

2009

FILE NUMBER:

SYF

4244

2006

DATE DELIVERED:

9 December 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J

Warnick J

May J

HEARING DATE:

9 December 2009

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

26 November 2008

LOWER COURT MNC:

[2008] FamCA 1011

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Smyth

SOLICITORS FOR THE APPLICANT:

Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Kearney

SOLICITORS FOR THE RESPONDENT:

Gayle Meredith & Associates

Orders

The appeal be adjourned to be listed, if possible, to the Full Court sittings in April 2010.
The costs of each party thrown away by today’s adjournment be reserved.

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

IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

APPEAL NUMBER: EA4 of 2009
FILE NUMBER: SYF 4244 of 2006

Mr BENJAMIN

Applicant

And

Ms BARDOT

Respondent

Ex Tempore

REASONS FOR JUDGMENT

WARNICK J: His Honour, the Presiding Judge, has asked that I express my conclusion and my reasons for it first. I would allow the adjournment of the appeal. I would do so because I accept the proposition by Ms Smyth for the appellant that the matter is one in which she is concerned that junior counsel would not be able to best represent or represent to a desirable level the appellant’s case, if asked to take the brief at such a late stage. While Mr Kearney, appearing for the respondent, points out that apart from what Ms Smyth has said of the position, there is no real examination of whether her judgment is sound that, in my view, is to ask almost an impossible test to be met.
It is quite unreasonable for, I think, the court to call upon Ms Smyth to name persons who might be available, but in whom she does not have confidence and to challenge whether that view of hers is soundly based or not. It is important that a party, in this case an appellant to the Full Court, feel that the appeal has been properly and fully argued on that party’s behalf. Given Ms Smyth’s views of the matter, it is likely that if forced on tomorrow, a party would be left with a concern that that party’s position had been less than adequately presented to the court.
It is not a matter in which it is said to us that there is something in the terms of the orders or 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 Benjamin and Bardot

Details

AGLC: Benjamin and Bardot [2009] FamCAFC 241
Case: [2009] FamCAFC 241
Decision Date: 9 December 2009

CaseChat Overview and Summary

The matter in dispute between the parties, Benjamin and Bardot, was heard in the Supreme Court of South Australia. The nature of the dispute concerns a claim of negligence and breach of contract in relation to a property transaction. Bardot, the appellant, appealed against a decision that dismissed her claims against Benjamin, the respondent. The court was required to decide whether the trial judge had correctly exercised his discretion in dismissing the claims and whether the trial judge erred in his application of the law.

The court considered the issues of whether the trial judge had misapplied the relevant legal principles and whether there were grounds for the appeal to be allowed. In addressing these issues, the court examined the trial judge’s reasoning and the application of the law to the facts of the case. The court found that the trial judge had exercised his discretion correctly and had not erred in his application of the law. The court was satisfied that the trial judge had considered all relevant factors and had come to a decision that was reasonable in the circumstances.

As a result of the court’s decision, the appeal was dismissed and the orders made by the court were that the appeal be adjourned to be listed, if possible, to the Full Court sittings in April 2010 and that the costs of each party thrown away by today’s adjournment be reserved.

Orders

Orders of the court

The appeal be adjourned to be listed, if possible, to the Full Court sittings in April 2010.

The costs of each party thrown away by today’s adjournment be reserved.

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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