Eastburn v Eastburn

[2022] NSWSC 1263

Supreme Court

New South Wales

Medium Neutral Citation:

Eastburn v Eastburn [2022] NSWSC 1263

Hearing dates:

19 September 2022

Date of orders:

19 September 2022

Decision date:

19 September 2022

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

(1) Today's hearing is adjourned;

(2) List the proceedings for mention only before me at 9.30am on 13 October 2022;

(3) Direct that access may not be granted to exhibit A in the application without prior order fo a Judge of this Court; and

(4) All questions of costs of the proceedings are reserved.

Catchwords:

CIVIL PROCEDURE – hearings – adjournment – application for adjournment where anti-suit order made in another Court – application granted

Legislation Cited:

Family Law Act 1975 (Cth)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

P. Eastburn (Plaintiff)
G. Eastburn (First Defendant)
L. Eastburn (Second Defendant)

Representation:

Counsel:
R.A. Dick SC with R.K. Jamison (Plaintiff)
N. Ford (First Defendant)
A. Macauley (Second Defendant)

Solicitors:
Colin Biggers Paisley (Plaintiff)
Owen Hodge (First Defendant)
Karras Partners (Second Defendant)

File Number(s):

2022/136043

Publication restriction:

Section 121 of the Family Law Act, 1975 (Cth). Pseudonyms adopted.

Judgment extempore (revised)

1. This is an application for judgment for a possession of a property at Mosman. The parties are related. The mortgagee plaintiff is the father of the first defendant, and the first defendant and the second defendant are the registered proprietors of the property as tenants in common, whose marriage has irretrievably broken down.

2. An application to transfer the proceedings to the Federal Circuit and Family Court of Australia (Division I) under the provisions of the applicable cross-vesting legislation is listed for hearing before me today. The matter is ready for hearing. The parties have filed relevant affidavit evidence, and written submissions on the question have been prepared by counsel for each party. In short, the matter was, in all respects, ready to proceed from the point of view of the parties and the Court.

3. An application for an adjournment has been made today by and on behalf of the plaintiff, the second respondent to the application for transfer. The basis of the application is that on Friday afternoon the Honourable Justice Christie of the Federal Circuit and Family Court made certain orders, including an order restraining the second respondent, who, as I have said, is the plaintiff, from further proceeding with this case, to the intent, as I understand it from what I have been told by counsel, that the issues that would otherwise be ventilated in this Court would be ventilated in that Court as part and parcel of the application of the first respondent/first defendant for a property settlement under Family Law Act 1975 (Cth).

4. It seems to me that the interests of the administration of justice require me to accede to the application made for the adjournment. Mr Dick of learned Senior Counsel, who appears with Mr Jameson for the plaintiff, explained that given this development, it is necessary for his client to give mature consideration not only to what should happen with these proceedings, but also what should happen, from his point of view, in relation to the proceedings in the Federal Circuit and Family Court to which he is now a party.

5. Mr Ford of counsel, who appears for the first respondent, does not oppose the adjournment. Mr Macauley of counsel, who appears for the second defendant/applicant, did oppose the adjournment and submitted that given the developments in the Federal Circuit and Family Court, it would be appropriate for this Court simply to transfer the possession proceedings to that Court now, for the avoidance of further delay and generation of yet further costs. Mr Macauley was content for the question of costs in this Court to abide the outcome in the Federal Circuit and Family Court or, perhaps, be reserved for determination in that Court.

6. It seems to me that it would not be satisfactory simply to pre-emptively transfer these proceedings because of the orders made in the Federal Circuit and Family Court. Mr Macauley, I think, accepted that the orders of Justice Christie do not of themselves require me as a matter of necessity to conclude that the interests of justice require the transfer of the proceedings, whatever else may be said about the merits of his client’s application.

7. I have formed a view that I could not transfer the proceedings if the making of that order was contested without hearing from the parties, and it is impossible for the plaintiff to participate in a meaningful way, in that hearing, to oppose the making of the orders given the anti-suit injunction restraining him from prosecuting these proceedings.

8. In those circumstances I think the better exercise of my discretion in relation to the management of the proceedings is to accede to the adjournment application, allowing the parties a chance to consider their position, and then bring it back for mention, as requested, in about three weeks.

9. For these reasons I make the following orders:

1. Today's hearing is adjourned;

2. List the proceedings for mention only before me at 9.30am on 13 October 2022;

3. Direct that access may not be granted to exhibit A in the application without an order from a Judge of this Court; and

4. All questions of costs of the proceedings are reserved.

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Decision last updated: 19 September 2022