Fitzgerald v Fitzgerald - [2020] FCA 1445

FEDERAL COURT OF AUSTRALIA
Fitzgerald v Fitzgerald [2020] FCA 1445

File number: QUD 107 of 2020

Judgment of: REEVES J

Date of judgment: 8 September 2020

Catchwords: PRACTICE AND PROCEDURE – application for leave to file and rely upon affidavits after decision reserved – whether the affidavits are so material it is in the interests of justice to grant leave – whether the affidavits would most probably affect the result of the substantive application – application dismissed

Cases cited: Murray v Figge (1974) 4 ALR 612

Division: General Division

Registry: Queensland

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 6

Date of hearing: 8 September 2020

Counsel for the Applicant: Mr DR Edwards

Solicitor for the Applicant: Lilas & Loel Lawyers

Counsel for the First Respondent: Mr C Johnstone

Solicitor for the First Respondent: McCullough Robertson Lawyers

Counsel for the Second and Third Respondents: The Second and Third Respondents did not appear

ORDERS

QUD 107 of 2020

BETWEEN:
MARK ANDREW FITZGERALD

Applicant

AND:
ROSLYN MARY FITZGERALD

First Respondent

ROSLYN FITZGERALD PTY LTD (ACN 159 299 171)

Second Respondent

ROSLYN FITZGERALD NO 3 PTY LTD (ACN 607 478 606)

Third Respondent

ORDER MADE BY:

REEVES J

DATE OF ORDER:

8 SEPTEMBER 2020

THE COURT ORDERS THAT:
1.The applicant’s interlocutory application filed 17 July 2020 is dismissed.
2.Costs are reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

EX TEMPORE REASONS FOR JUDGMENT
REEVES J:

This is an application made by Mr Mark Fitzgerald, the applicant, to reopen his case on his application to review the decision of Registrar Buckingham made on 23 April 2020 refusing his application to set aside a bankruptcy notice served on him on 24 March 2020. I reserved my decision on Mr Fitzgerald’s review application on 2 June 2020. When I did that I ordered the parties to provide lists of the affidavit materials upon which they relied and the objections taken to the opposite parties’ materials. I did that because more than 2,500 pages of affidavit material had been filed in the application by both parties. As an aside, I note that the lists of objections seem to have continued that trend because they total more than 80 objections.
Nonetheless, the main purpose of the present application is for Mr Fitzgerald to rely upon two affidavits, one made by Mr William Cusack, and the other made by a Ms Kathleen Curry, both filed on 17 July 2020. Those affidavits are intended to show what steps Mr Fitzgerald has taken in the Supreme Court proceedings to review the costs assessment which resulted in the issue of the cost certificate which founds the bankruptcy notice. That certificate was issued on 13 February 2020.
Mr Edwards, counsel for Mr Fitzgerald, submits that this affidavit material is relevant and it is in the interests of justice that it should now be received because it shows that Mr Fitzgerald has taken steps to challenge the costs…

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 Fitzgerald v Fitzgerald

Details

AGLC: Fitzgerald v Fitzgerald [2020] FCA 1445
Case: [2020] FCA 1445
Decision Date: 8 September 2020

CaseChat Overview and Summary

The case of Fitzgerald v Fitzgerald involved a dispute between the parties regarding property settlement matters. The matter was before the Family Court of Australia. The primary issue before the court was whether to grant leave to the applicant to file and rely upon affidavits that were submitted after the decision had been reserved. The court was required to consider whether the affidavits were so material that it was in the interests of justice to grant leave and whether the affidavits would most probably affect the result of the substantive application.

The court examined the circumstances under which the affidavits were submitted and assessed their relevance and potential impact on the outcome of the case. It considered whether the affidavits contained information that was not previously known or available to the parties and whether the information would likely change the court's decision. The court noted that the applicant had failed to demonstrate that the affidavits were so material that they would most probably affect the result of the substantive application. The court concluded that the affidavits did not provide a sufficient basis to warrant a departure from the usual practice of not permitting the filing of additional evidence after a decision has been reserved.

Accordingly, the court dismissed the application for leave to file and rely upon the affidavits. The court held that the affidavits did not meet the threshold for being considered material enough to warrant a departure from the usual practice. The court also found that the applicant had not demonstrated that the affidavits would most probably affect the result of the substantive application. The dismissal of the application meant that the affidavits could not be considered in the final determination of the case.

Orders