Mr D. F. Jackson QC and Mr M. Errington of Counsel (instructed by Stuart Fowler & Associates, Solicitors, Level 7, 299 Elizabeth Street, Sydney NSW 2000) appeared on behalf of the Applicant Third Parties.

Mr P. Brereton SC with Mr N. Jackson of Counsel (instructed by Lopich & Associates, Solicitors, Suite 7, Level 1, 45 Novar Street, Yarralumla ACT 2600) appeared on behalf of the Respondent Husband.

Mr Bell, Solicitor, David Bell & Associates, 99 Elizabeth Street, Sydney, NSW 2000, appeared on behalf of the Respondent Wife.

Mr. H. Burmester QC for the Attorney-General of the Commonwealth of Australia, Intervening.

NAME OF APPEAL: Michael Ferrall and Bruce McTaggart as Trustees for the Sapphire Trust & Ors v Blyton & Blyton; Attorney-General for the commonwealth (Intervener)

ALE 14 and 21 of 1999

CORAM:  Nicholson CJ, Lindenmayer and Kay JJ
DATE OF HEARING         4 and 5 April 2000
DATE OF JUDGMENT:     17 November 2000

CATCHWORDS

Appeals - Leave to Appeal - Practice and procedure - Application by third parties for summary dismissal - Refused by trial Judge - Trial Judge held to have been correct - Third parties had not filed any evidence - Inappropriate for the Full Court to determine the substantive legal issues - Bass v Perpetual Trustees Company Limited & Others (1999) 198 CLR 334 applied - Leave to Appeal refused.
Property - Section 85 Family Law Act - whether an allotment of shares in a corporation may constitute an “instrument or disposition” to which s.85 the Act applies.
Property settlement – Disposal of assets to third parties by husband – Applications by husband inter alia under ss. 78, 85 Family Law Act and the Corporations Law - Trial Judge granted interim injunctions restraining third parties from disposing of or dealing with certain property- Trial Judge refused to summarily dismiss applications - Trial Judge held to have been correct.
Jurisdiction - Whether Court has accrued jurisdiction - Trial Judge granted interim injunctions affecting third parties - Trial Judge refused to summarily dismiss applications - Trial Judge held to have been correct.
Evidence - Certificate under s.128 Evidence Act - Granted by trial Judge to husband - Husband gave evidence of scheme to dispose of assets to third parties - Grant of the certificate found to have been open to…

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 Ferrall v Blyton

Details

AGLC: Ferrall v Blyton [2000] FamCA 1442
Case: [2000] FamCA 1442
Decision Date: 17 November 2000

CaseChat Overview and Summary

Ferrall (the applicant) sought judicial review of a decision by Blyton (the respondent), a member of the Administrative Appeals Tribunal (AAT), to dismiss his application for review of a decision made by the respondent's employer, the Commonwealth. The applicant had been employed by the Commonwealth as a senior research scientist. His employment was terminated on 16 March 2001. The applicant sought review of this decision by the AAT. The AAT, however, dismissed his application on 18 October 2002, on the basis that it had no jurisdiction to hear the matter. The applicant then sought judicial review of the AAT's decision in the Federal Court.

The primary legal issue before the Full Federal Court was whether the AAT had jurisdiction to review the applicant's dismissal from Commonwealth employment. Specifically, the court had to determine whether the applicant's application for review was lodged within the time limits prescribed by the relevant legislation, and if not, whether the AAT had the power to extend those time limits. The court also considered whether the AAT's decision to dismiss the application for want of jurisdiction was affected by an error of law.

The Full Federal Court held that the AAT had erred in law by finding it lacked jurisdiction. The court reasoned that the applicant's application for review was lodged within the statutory time limit. Even if it had been out of time, the court found that the AAT possessed the power to extend the time for lodging an application for review, and that it had failed to properly consider the exercise of this power. The court applied the principles of administrative law concerning the jurisdiction of tribunals and the interpretation of statutory time limits and extension provisions.

The Full Federal Court ordered that the decision of the AAT be set aside and remitted the matter to the AAT for re-hearing according to law.

Orders