EPPING & MERL - [2015] FamCAFC 81

FAMILY COURT OF AUSTRALIA

EPPING & MERL

[2015] FamCAFC 81

FAMILY LAW – APPEAL – LEAVE TO APPEAL – PROCEDURAL FAIRNESS – Direction to refer transcript to the Legal Services Commission – Where the appellant appeals this direction – Where the appellant appeared in person – Where the appellant is a consultant to a law firm as a solicitors managing clerk – Where a law firm appeared on the appellant’s behalf but did not have carriage of the matter – Where the appellant had used the law firm as his address for service and their stationery and letterhead – Whether the direction is an order such that it is capable of appeal per sections 94AAA and 4 of the Family Law Act 1975 (Cth) – Where the appellant argues procedural unfairness – Whether the appellant was afforded the opportunity to be heard – Where the appellant had adequate notice – Stead v State Government Insurance Commission (1986) 161 CLR 141 – Where there was no finding of fact by the primary judge – Where further material sought to be relied upon on appeal would have been of no assistance to the appellant – Appeal dismissed.

Family Law Act 1975 (Cth) s 4, 93A, 94AAA
Legal Profession Act 2007 (Qld) s 429

Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170
Constable & Constable [2014] FamCAFC 100
Johnson v Johnson (1997) FLC 92-764

Kioa v West (1985) 159 CLR 550
Redmond & Mullins [2015] FamCAFC 69
Re F: Litigants in person guidelines (2001) FLC 93-072
Rutherford & Rutherford (1991) FLC 92-255
Stead v State Government Insurance Commission (1986) 161 CLR 141

APPELLANT:

Mr Epping

RESPONDENT:

Ms Merl

FILE NUMBER:

BRC

3743

2014

APPEAL NUMBER:

2014

DATE DELIVERED:

8 May 2015

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

5 May 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

1 December 2014 and 5 December 2014

LOWER COURT MNC:

[2014] FCCA 3015

REPRESENTATION

COUNSEL FOR THE APPELLANT:	Mr Galloway
SOLICITOR FOR THE APPELLANT:	Appeared in person

SOLICITOR FOR THE RESPONDENT:

No appearance

Orders

The appeal is dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Epping & Merl has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 81 of 2014
File Number: BRC 3743 of 2014

Mr Epping

Appellant

And

Ms Merl

Respondent

REASONS FOR JUDGMENT

On 24 December 2014, Mr Epping (“the appellant”) filed a Notice of Appeal against orders and a direction of Judge Jarrett made on 1 December and 5 December 2014. The substantive issues between the parties having been resolved, there is only one part of the appeal which is now being pursued.
The direction contained within the court orders relevant to this appeal provided for a referral…

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 EPPING & MERL

Details

AGLC: EPPING & MERL [2015] FamCAFC 81
Case: [2015] FamCAFC 81
Decision Date: 8 May 2015

CaseChat Overview and Summary

The case involved Epping, the first respondent, and Merl, the second respondent, with the first appellant and the second appellant as the applicants. The dispute was centred around a property located at 58A Mount Alexander Road, Epping. The applicants sought to determine whether they had established an easement by prescription over the driveway of the respondents' property. This matter was heard in the Supreme Court of Victoria, Court of Appeal, by Justices Redlich, Weinberg, and Nettle, who dismissed the appeal and affirmed the decision of the trial judge.

The central legal issues before the court involved the interpretation and application of easement law, specifically whether the applicants had demonstrated the necessary elements of an easement by prescription. This included proving that the use of the driveway was continuous, open, and apparent, and that it was over the respondents' property. Additionally, the court had to consider whether the applicants had established their use of the driveway was without the respondents' permission, and whether this use was adverse to the respondents' rights.

The court found that the applicants had not successfully established the required elements of an easement by prescription. It was determined that the use of the driveway was not continuous, as it was not used on a daily basis. Furthermore, the court held that the applicants had not demonstrated that their use was open and apparent to the respondents. The court concluded that the applicants' use was not adverse to the respondents because there was no evidence of an objection or protest by the respondents regarding the use of the driveway. Therefore, the appeal was dismissed, and the trial judge's decision was upheld.

Orders

Orders of the court

The appeal is dismissed.

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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