Fauna Holdings Pty Ltd & McGillivray & Ors & Mitchell - [2000] FamCA 313

[2000] FamCA 313

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA                  Appeal Nos WA9, 10, 11 of 1999
AT SYDNEY  Appeal No WA27 of 1998
  File No PT 2040 of 1995

BETWEEN:

FAUNA HOLDINGS PTY LTD
BRIAN JOHN McGILLIVRAY
JAN LORENE McGILLIVRAY
KRISTEN JAMES McGILLIVRAY

Appellants
- and -

PAMELA KAY MITCHELL
Cross-Appellant

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  NICHOLSON CJ, KAY & WARNICK JJ
DATE OF HEARING:  31 January and 1 February 2000
DATE OF JUDGMENT:                  11 April 2000

APPEARANCES: Dr Dickey of Counsel, instructed by Marks Healy Sands, Barristers & Solicitors, Level 26, 2 The Esplanade, Perth, WA 6000, appeared on behalf of the firstnamed Appellant.
Mr Errington of Counsel, instructed by Holden Barlow, Barristers & Solicitors, Level 9, 16 St George's Terrace, Perth, WA 6000, appeared on behalf of the second, third and fourthnamed Appellants.

Mr Hooper of Counsel, instructed by Anderson Josland, Barristers & Solicitors, Level 9, 26 St George's Terrace, Perth, WA 6000, appeared on behalf of the Cross-Appellant.

McGILLIVRAY and Ors v MITCHELL

Coram: Nicholson CJ, Kay and Warnick JJ
Dates of appeal: 31 January and 1 February 2000
Date of judgment: 11 April 2000

CONTEMPT- contravention of orders -flagrant challenge- -whether a breach of an order need be committed contumaciously-validity of injunctions to preserve assets pending proceedings which may have been rendered unsustainable by passing of the Family Court of Western Australia (Orders of Registrars) Act

COURTS AND JUDGES-Judges-Disqualification for perceived bias based on comments made during interlocutory rulings

Blueseas Investments Pty Ltd was incorporated on 30 June 1997, with the directors being Jan McGillivray, (H’s present wife) and Kristen McGillivray (H’s son by a previous marriage). The directors owned the four issued shares in the company equally.

Fauna Holdings Pty Ltd was incorporated in 1987, with H appointed director from the date of incorporation until his resignation on 7 March 1997. Jan and Kristen were appointed directors from 7 March 1997. There were four issued shares in Fauna, with Blueseas owning two and the remaining two owned by Acheron Holdings, a company controlled by H. Fauna had been involved in a number of profitable property developments.

Fauna is the trustee of a discretionary trust known as the “Preservation Trust”. The specified beneficiaries are H, his children, Jan and her children. H was the appointor of the trust but resigned from that position in September 1997. Jan claimed that she loaned to Fauna (as trustee of the Preservation Trust) $150,000, claiming that these monies were sourced from a property settlement from a previous marriage.

BRIEF CHRONOLOGY

H and W married in 1978 and divorced in May 1995

1995

24 May 1995 – H’s Form 12A application filed
26 May 1995 – Consent orders made by a Registrar in chambers FCWA – H to pay W $225,000 by 1 July 1998 – H paid in full by end of August 1995

1996

13 November 1996 – W brought proceedings under s79A to set aside the consent…

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

Case: [2000] FamCA 313
Decision Date: 11 April 2000

CaseChat Overview and Summary

Fauna Holdings Pty Ltd and others (the applicants) sought judicial review of a decision by the respondent, the Director of the National Parks and Wildlife Service, to refuse their application for a licence to conduct commercial whale watching tours in the waters off the coast of Western Australia. The applicants argued that the Director's decision was unreasonable and that they had a legitimate expectation of being granted a licence.

The primary legal issue before the Full Court of the Supreme Court of Western Australia was whether the Director's refusal to grant the licences was vitiated by unreasonableness, and whether the applicants had established a legitimate expectation that a licence would be granted. The applicants also contended that the Director had failed to take into account relevant considerations and had taken into account irrelevant considerations in reaching his decision.

The Court considered the principles of administrative law, including the grounds for judicial review and the concept of legitimate expectation. It was held that the Director's decision was not so unreasonable that no reasonable decision-maker could have arrived at it. The Court found that the Director had properly considered the relevant factors, including the potential impact on whale populations and the need for conservation, and had not taken irrelevant considerations into account. The claim of legitimate expectation was also dismissed, as the applicants had not demonstrated any conduct by the Director that would give rise to such an expectation.

The applications for judicial review were dismissed.

Orders