FAMILY LAW – APPEAL – LEAVE TO APPEAL – ACCRUED JURISDICTION – FINANCIAL AGREEMENT – Claim for damages against solicitors and counsel – Where the trial judge determined that the Family Court had the jurisdiction to hear and determine all of the claims joined between the parties – Leave to appeal granted – Where intermediate courts of appeal may depart from their own earlier decisions – Where no merit found in any of the grounds of appeal – Appeal dismissed.
Australian Constitution – ss 51(i), 75 and 76 Family Law Act 1975 (Cth) – ss 4, 31(1)(a), 33, 39, 75(2), 79, 79A, 90C, 90G(1A) and 117(1)
Judiciary Act 1903 (Cth) – ss 39B(1A)(c), 78B, 79 and 80
Jurisdiction of Courts (Cross‑vesting) Act 1987 (Cth) – ss 4(1) and 5(4)(b)(iii)
[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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AGLC
F Firm & Ruane and Ors [2014] FamCAFC 189
Case
[2014] FamCAFC 189
Decision Date
CaseChat Overview and Summary
The case of F Firm & Ruane and Others involved a dispute that was before the court to determine whether certain claims could be heard together under the court's jurisdiction. The matter was heard by Murphy J and subsequently appealed to the Full Court. The central issue in the case was whether the existence of a "common substratum of facts" between the wife's claim and the husband's cross-claim was sufficient to attract the court's jurisdiction, or if there needed to be a more stringent requirement of a single justiciable controversy. The wife argued that once a common substratum of facts was identified, the court's jurisdiction was automatically engaged. This argument was based on several High Court precedents, including Fencott v Muller and Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd.
The Full Court, however, took the view that while a common substratum of facts was a useful guide, it was not determinative of the court's jurisdiction. Instead, the court needed to ascertain whether the claims were so interdependent that they constituted one controversy. The court referenced the judgment in Wakim, where it was emphasised that identifying the central justiciable matter was crucial. The Full Court thus distinguished between a common substratum of facts and the necessity of a single controversy to engage the court's jurisdiction.
In granting leave to appeal but dismissing the appeal, the court acknowledged the importance of the wife's arguments but ultimately upheld the Full Court's reasoning. The court found that the Full Court was correct in requiring more than just a common substratum of facts to determine jurisdiction. The final orders of the court included granting leave to appeal, dismissing the appeal, and setting a timeline for the parties to file and serve written submissions regarding costs.
Orders
Orders of the court
1.
Leave to appeal the orders made by Murphy J on 22 May 2012 be granted.
2.
The appeal be dismissed.
3.
Within 21 days of the date hereof each party be at liberty to file and serve any written submissions in support of any application for costs in relation to the appeal.
4.
Each party have a further 14 days in which to file and serve any written submissions in response to any submissions filed by the other party.
5.
Each submission have endorsed on the cover sheet the date on which a copy of that submission is served on the other party.
Background
Background to the litigation
The first asserted error appears at [38], where the Full Court said (emphasis added): 38.Nevertheless, even if the facts upon which the claims depend “do not wholly coincide”, there can still be a sufficiently common substratum of facts existing between the wife’s claim and the husband’s cross-claim, as was made clear in Wakim at [140]. But even if a common substratum of facts exists in this case, there remains the need to identify one justiciable controversy, or matter, in order to attract the accrued jurisdiction, and that identification, as Gummow and Hayne JJ emphasised at [139] of Wakim, is “[t]he central task”. The wife takes issue with the highlighted part of the citation. She contends that the Full Court in Noll should have recognised that once a “common substratum of facts” is found to exist, then there is one controversy and accrued jurisdiction is thereby attracted. This argument finds firm foundation in pronouncements in the High Court such as the following from Fencott v Muller (1983) 152 CLR 570 at 607, approving what was said by Mason J (with whom Stephen J agreed) in Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 512, which in turn relied on what had been said in Moorgate Tobacco (citations omitted): It follows also that, though the facts upon which a non-federal claim arises do not wholly coincide with the facts upon which a federal claim arises, it is nevertheless possible that both may be aspects of a single matter arising under a federal law. Mason J in Philip Morris, following what was said in Moorgate Tobacco, gave an indication of a non-federal claim which would not be severable:“Likewise, it may appear that the attached claim and the federal claim so depend on common transactions and facts that they arise out of a common substratum of facts. In instances of this kind a court which exercises federal jurisdiction will have jurisdiction to determine the attached claim as an element in the exercise of its federal jurisdiction.” However, it should be observed that the majority of the High Court in Fencott v Muller went on to say at 607:Perhaps it is not possible to devise so precise a formula that its application to the facts of any controversy would determine accurately what claims are disparate and what claims are not. Whatever formula be adopted as a guide – and the formula of “common transactions and facts” is a sound guide for the purpose – it must result in leaving outside the ambit of a matter a “completely disparate claim constituting in substance a separate proceeding” … or “some distinct and unrelated non-federal claim”. It seems to me that perhaps all the Full Court was doing at [38] in Noll was saying that even if there was a “common substratum of facts”, it was still necessary to show that the claims so depended on those facts as to constitute one controversy. In other words, while their Honours accepted the “common substratum of facts” formula as a “guide”, they still felt it necessary to decide whether the claims were “completely disparate” or “distinct and unrelated”.