Brennan v McGuire (No 3) - [2011] FCA 505

FEDERAL COURT OF AUSTRALIA
Brennan v McGuire (No 3)
[2011] FCA 505

Citation: Brennan v McGuire (No 3) [2011] FCA 505

Parties: ROBERT GEORGE BRENNAN v GLENYS FREYA MCGUIRE

File number: NSD 1147 of 2010

Judge: RARES J

Date of judgment: 16 May 2011

Catchwords: PRACTICE AND PROCEDURE – reopening of final orders – s 28 Domestic Relationships Act 1994 (ACT) – power to reopen final orders under s 28 and the inherent or implied power to do so – actions by one party having potential to adversely affect compliance with final orders – necessary to amend final orders to ensure other party not adversely affected – unsatisfactory evidence led by parties – possible misapprehension by court of the facts creating unnecessary difficulties with final orders – time for appeal from final orders expired –– necessary to amend final orders to avoid both risk of injustice and further proceedings between parties

Legislation:
Civil Procedure Act 2005 (NSW) s 56

Domestic Relationships Act 1994 (ACT) ss 14, 15, 25 and 28
Federal Court of Australia Act 1976 (Cth) ss 5(1) and (2), 37M
Federal Court Rules O 35 r 7(2) and (3)

Cases cited: Brennan v McGuire [2010] FCA 1443 referred to
Brennan v McGuire(No 2) [2011] FCA 148 referred to
De L v Director-General NSW Department of Community Services [No 2] (1997) 190 CLR 207 followed
Grassby v The Queen (1989) 168 CLR 1 followed
Metwally v University of Wollongong (No 2) (1985) 60 ALR 68 referred to
Newmont Yandal Operations Pty Ltd v The J Aron Corporation and The Goldman Sachs Group Inc (2007) 70 NSWLR 411 referred to

Date of hearing: 11 May 2011

Date of last submissions: 11 May 2011

Place: Sydney (via video link to Canberra)

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 34

Solicitor for the Applicant: Ms M Reid of Phelps Reid

Counsel for the Respondent: Respondent appeared in person

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1147 of 2010

BETWEEN:
ROBERT GEORGE BRENNAN
Applicant

AND:
GLENYS FREYA MCGUIRE
Respondent

JUDGE:

RARES J

DATE OF ORDER:

16 MAY 2011

WHERE MADE:

SYDNEY (VIA VIDEO LINK TO CANBERRA)

THE COURT ORDERS THAT:
1.Each of the respondent (“Ms McGuire”) and Wayne Kaufline (“Mr Kaufline”) show cause by filing and serving an affidavit on or before 24 May 2011 deposing as to:
(a)what, if any, interest each asserts he and she now has in the Rob Brennan Superannuation Fund and the basis of that assertion (“the fund”);
(b)the documents each received in or about August 2009, and annexing copies thereof, that relate to or identify all sums paid to each of them, MKF SuperFund or any other person or superannuation fund nominated by him or her, received as a rollover or other payment by the fund before 26 August 2009, together with all documents by which he or she requested, or caused to be requested, that each such payment by the fund…

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 Brennan v McGuire (No 3)

Details

AGLC: Brennan v McGuire (No 3) [2011] FCA 505
Case: [2011] FCA 505
Decision Date: 16 May 2011

CaseChat Overview and Summary

The case of Brennan v McGuire (No 3) arose in the Federal Circuit Court of Australia, involving a dispute concerning the reopening of final orders. The final orders were made under the Domestic Relationships Act 1994 (ACT). The core issue was whether the Court had the authority to reopen final orders to address actions by one party that could adversely affect compliance with those orders and ensure the other party was not adversely affected.

The legal issues before the court were whether the power to reopen final orders under s 28 of the Domestic Relationships Act 1994 (ACT) and the inherent or implied power to do so could be exercised in these circumstances. The court also had to consider the implications of unsatisfactory evidence presented by the parties and potential misapprehensions regarding the facts, which created difficulties with the final orders. Additionally, the court examined whether reopening the final orders was necessary to avoid the risk of injustice and further proceedings between the parties, given that the time for appeal from the final orders had expired.

The court found that the circumstances warranted reopening the final orders to prevent potential injustice and further litigation. The unsatisfactory evidence presented by the parties and the possible misapprehension of facts by the court created difficulties with the final orders. The court concluded that reopening the orders was necessary to ensure that neither party was adversely affected and to avoid further proceedings. Consequently, the court ordered specific affidavits and submissions from the parties and scheduled a hearing to determine further orders.

The court's final orders required the respondents and Wayne Kaufline to file affidavits deposing to certain matters regarding their interests in the Rob Brennan Superannuation Fund and related documents. The proceedings were stood over to allow for the consideration of these affidavits and submissions before making further orders.

Orders

Orders of the court

1. Each of the respondent (“Ms McGuire”) and Wayne Kaufline (“Mr Kaufline”) show cause by filing and serving an affidavit on or before 24 May 2011 deposing as to:

(a) what, if any, interest each asserts he and she now has in the Rob Brennan Superannuation Fund and the basis of that assertion (“the fund”);

(b) the documents each received in or about August 2009, and annexing copies thereof, that relate to or identify all sums paid to each of them, MKF SuperFund or any other person or superannuation fund nominated by him or her, received as a rollover or other payment by the fund before 26 August 2009, together with all documents by which he or she requested, or caused to be requested, that each such payment by the fund be made.

2. Ms McGuire serve Mr Kaufline with these orders on or before 16 May 2011 and file and serve an affidavit of service on or before 17 May 2011.

3. Each party and Mr Kaufline serve and provide a copy to the associate to Rares J on or before noon on 26 May 2011 written submissions as to the orders, if any that the Court should make on 27 May 2011.

4. The proceedings stand over to 27 May 2011 at 8:30am for hearing to determine:

(a) whether cause has been shown by each person referred to in Order 1;

(b) what, if any, further orders ought be made including, but not limited to, orders to give effect to or vary the orders made on 24 February 2011.

Note:

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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Citation:		Brennan v McGuire (No 3) [2011] FCA 505
Parties:		ROBERT GEORGE BRENNAN v GLENYS FREYA MCGUIRE
File number:		NSD 1147 of 2010
Judge:		RARES J
Date of judgment:		16 May 2011
Catchwords:		PRACTICE AND PROCEDURE – reopening of final orders – s 28 Domestic Relationships Act 1994 (ACT) – power to reopen final orders under s 28 and the inherent or implied power to do so – actions by one party having potential to adversely affect compliance with final orders – necessary to amend final orders to ensure other party not adversely affected – unsatisfactory evidence led by parties – possible misapprehension by court of the facts creating unnecessary difficulties with final orders – time for appeal from final orders expired –– necessary to amend final orders to avoid both risk of injustice and further proceedings between parties
Legislation:		Civil Procedure Act 2005 (NSW) s 56 Domestic Relationships Act 1994 (ACT) ss 14, 15, 25 and 28 Federal Court of Australia Act 1976 (Cth) ss 5(1) and (2), 37M Federal Court Rules O 35 r 7(2) and (3)
Cases cited:		Brennan v McGuire [2010] FCA 1443 referred to Brennan v McGuire(No 2) [2011] FCA 148 referred to De L v Director-General NSW Department of Community Services [No 2] (1997) 190 CLR 207 followed Grassby v The Queen (1989) 168 CLR 1 followed Metwally v University of Wollongong (No 2) (1985) 60 ALR 68 referred to Newmont Yandal Operations Pty Ltd v The J Aron Corporation and The Goldman Sachs Group Inc (2007) 70 NSWLR 411 referred to
Date of hearing:	11 May 2011
Date of last submissions:	11 May 2011
Place:	Sydney (via video link to Canberra)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	34
Solicitor for the Applicant:	Ms M Reid of Phelps Reid
Counsel for the Respondent:	Respondent appeared in person

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1147 of 2010

BETWEEN:	ROBERT GEORGE BRENNAN Applicant
AND:	GLENYS FREYA MCGUIRE Respondent

JUDGE:	RARES J
DATE OF ORDER:	16 MAY 2011
WHERE MADE:	SYDNEY (VIA VIDEO LINK TO CANBERRA)