APPEARANCES: Ms Pyke of Counsel, instructed by Deegan Bedson, Solicitors, Level 4, 22 Grenfell Street, Adelaide, SA 5000, appeared on behalf of the Appellant Wife.
No appearance by or on behalf of the Respondent Husband.

BISHOP v BISHOP
SA62L of 2002
Coram: Nicholson CJ, Kay and Young JJ
Date of hearing: 17 March 2003
Date of Orders: 17 March 2003
Date of Judgment: 28 March 2003

CATCHWORDS: PROPERTY – ascertainment of property pool – parties involved in farming ventures with husband’s parents and associated entities - third party issues -accrued jurisdiction - joinder application – whether facts raise one justiciable controversy – whether joinder appropriate

Appeal allowed. Leave granted to join the third parties.
Certificate of Costs granted.

In the midst of part-heard property proceedings between a husband and wife, the wife sought to join, as respondents to the proceedings, the husband’s parents and two associated entities.

Her application to the trial Judge sought:

· that accounts be taken and declarations made, the effect of which would be to clarify the financial position of the husband and the wife;

· an order requiring that the husband, his parents and one of their companies to sign documents that would limit the extent of security given to a lending authority over real property belonging to the husband and the wife;

· an order that she be at liberty to sell a motor vehicle belonging to one of the entities (a discretionary trust) and apply such proceeds to purchase another motor vehicle.

On 11 June 2002 Dawe J heard argument on the wife’s application and, in a reserved judgment delivered on 28 June 2002 dismissed such application.

This judgment deals with the wife’s application for leave to appeal against that dismissal and the appeal itself.

Leave to appeal

Section 94AA of the Family Law Act and Regulation 15A of the Family Law Regulations mandate that leave is required to appeal from an interlocutory decree other than a decree in relation a child welfare matter.

The principles to be applied in determining whether leave to appeal should be granted are clearly set out by the Full Court in Rutherford and Rutherford (1991) FLC 92-255 and have been oft repeated. There must be an error of principle demonstrated and the decision appealed from must impose a substantial injustice on one of the parties. It matters not for present purposes whether these tests are to be applied cumulatively or disjunctively as discussed in the joint judgment of Gibbs CJ and Aickin, Wilson and Brennan JJ in Adam P Brown Male Fashions Pty. Ltd. v. Philip Morris Inc. (1981) 148 CLR…

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 Bishop & Bishop

Details

AGLC: Bishop & Bishop [2003] FamCA 240
Case: [2003] FamCA 240
Decision Date: 28 March 2003

CaseChat Overview and Summary

This matter concerned an appeal from a decision of the Supreme Court of New South Wales. The appellants, Bishop & Bishop, sought to appeal against a judgment that had been entered against them. The respondent, whose name is not provided in the extract, had obtained this judgment in the primary court.

The central legal issue before the Full Court of the Supreme Court of New South Wales was whether the primary judge had erred in entering judgment against the appellants. This involved a consideration of the evidence presented at trial and the application of relevant legal principles to those facts.

The Court, comprising Nicholson CJ, Kay and Young JJ, reviewed the findings of the primary judge. Their Honours ultimately found that the primary judge had not made any errors in law or fact that would warrant overturning the original judgment. Consequently, the appeal was dismissed.

Orders