Daily & Daily - [2023] FedCFamC1A 76

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Daily & Daily [2023] FedCFamC1A 76

Appeal from: Daily & Daily [2023] FedCFamC1F 222

Appeal number: NAA 103 of 2023

File number: ADC 4606 of 2018

Judgment of: AUSTIN J

Date of judgment: 17 May 2023

Catchwords: FAMILY LAW – APPEAL – Property – Financial Agreement – Where the primary judge set aside the spouses’ financial agreement pursuant to s 90K(1)(d) of the Family Law Act 1975 (Cth) (“the Act”) – Where the primary judge found the second respondent legal corporation was negligent and liable in damages to the husband – Where the proceedings at first instance are currently adjourned for assessment of the damages and determination of the spouses’ property settlement – Where the husband contends in the appeal the financial agreement should be set aside under a different provision of the Act – Where the husband contends successful prosecution of the appeal would bear upon the issues of causation and damages in his action against the second respondent – Where the husband sought discretionary orders be made under Part VIII of the Act to alter the spouses’ property interests – Where the appellant and second respondent’s proposal to stay the hearing of the appeal, pending finalisation of the proceedings within the original jurisdiction, is rejected – Where the cross appeal of the second respondent does not attack any judgment and is incompetent – Notice of Cross Appeal dismissed – Second respondent granted extra time to file a Notice of Contention

Legislation:
Family Law Act 1975 (Cth) Pt VIII, ss 90G, 90K, 71A

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 67, 68

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.08

Cases cited:
Commonwealth v Bank of NSW (1949) 79 CLR 497; [1949] ALR 925

Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45; [1968] HCA 91

Number of paragraphs: 27

Date of hearing: 17 May 2023

Place: Newcastle (via Microsoft Teams)

Counsel for the Appellant: Ms Miller

Solicitor for the Appellant: Jordan & Fowler

Counsel for the First Respondent: Mr Anderson

Solicitor for the First Respondent: Norman Waterhouse Lawyers

Counsel for the Second Respondent: Mr Doyle KC

Solicitor for the Second Respondent: Barry Nilsson Lawyers
ORDERS

NAA 103 of 2023
ADC 4606 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR DAILY

Appellant

AND:
MS DAILY

First Respondent

R LAWYERS

Second Respondent

order made by:

AUSTIN J

DATE OF ORDER:

17 may 2023

THE COURT ORDERS THAT:
1.Grounds 3, 4, 5 and 6 contained within the Notice of Appeal filed on 26 April 2023 are struck out.
2.The Notice of Cross Appeal filed on 5 May 2023 is dismissed.
3.The time for the second respondent to file a Notice of Contention is extended to Friday 9 June 2023.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy…

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.

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Details

AGLC: Daily & Daily [2023] FedCFamC1A 76
Case: [2023] FedCFamC1A 76
Decision Date

CaseChat Overview and Summary

The case of Daily & Daily involved an appeal against the decision of the Federal Circuit and Family Court of Australia (Division 1) to set aside a financial agreement between the spouses, the appellant husband and the first respondent wife. The appeal was heard by Justice Austin, who examined the validity of the financial agreement and the husband's potential damages claim against the second respondent, the legal corporation through which his former lawyers practiced. The husband argued that the financial agreement should be set aside under a different provision of the Family Law Act 1975 (Cth) and sought discretionary orders under Part VIII of the Act to alter the spouses' property interests.

Justice Austin determined that the appeal was largely premature given that the primary judge's order had only addressed one aspect of the wider controversy between the spouses. The husband had agreed with the outcome of setting aside the financial agreement, which was necessary to overcome the ouster of jurisdiction under Part VIII of the Act. However, the husband believed that the successful prosecution of the appeal would influence the issues of causation and damages in his action against the second respondent. Justice Austin found these submissions unpersuasive, emphasizing that all findings underpinning the ultimate judgments in the two causes of action would be amenable to challenge in any subsequent appeal. The court also noted that the appeal could likely result in a question of costs.

The second respondent's cross appeal was dismissed as incompetent, as it did not attack any judgment made to resolve the contractual or tortious rights between the husband and the second respondent. The court granted the second respondent extra time to file a Notice of Contention.

In summary, Justice Austin struck out certain grounds of the appeal, dismissed the cross appeal, and extended the time for the second respondent to file a Notice of Contention. The court emphasized the importance of expediting litigation in both original and appellate jurisdictions to ensure it is conducted quickly, inexpensively, and efficiently.

Orders