Friis v Friis

[2000] QCA 480

[2000] QCA 480

COURT OF APPEAL

DAVIES JA
THOMAS JA
DOUGLAS J

Appeal No 10772 of 1999

GLENDA CAROLYN FRIIS
(as Legal Personal Representative of the
 Estate of MERVYN JOHN FRIIS)           Applicant/Applicant

v.

PHYLLIS ISABEL FRIIS      First Respondent/First Respondent

and

JAMES JOSEPH FRIIS      Second Respondent/Second Respondent

and

LYNETTE CAROL FRIIS       Third Respondent/Third Respondent

BRISBANE

..DATE 22/11/2000

JUDGMENT

DAVIES JA:  These are applications which arise out of applications which were adjourned by this Court to a date to be fixed on 10 March this year.  In order to understand the nature of these applications it is necessary to say something about the history of the matters to which they relate.

The applicant in the original proceedings, whom I will call the applicant, is the daughter of Mervyn John Friis, deceased, and the first respondent Phyllis Isabel Friis.  Immediately before his death Mervyn instructed the institution of proceedings and the proceedings were instituted in the Family Court against the first respondent and in the Supreme Court against the second and third respondents who although bearing the same name as the applicant and the first respondent are either not or only distantly related to them.  Upon Mervyn's death the applicant continued both sets of proceedings as his personal representative and the Supreme Court proceedings were purportedly cross-vested to the Family Court pursuant to legislation then thought to be valid. 

Pursuant to the same legislation which is the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Qld), the first respondent purported to institute proceedings against the second and third respondents in the Family Court. The actions by Mervyn and the first respondent against the second and third respondents were in respect of a gift of farming land by the first respondent to the second and third respondents which, it was alleged, was procured by undue influence or unconscionability.

The matter was then heard by a judge of the Family Court. He granted the first respondent relief which she sought on the ground of unconscionability and granted the applicant partial relief on her claim, also based on unconscionability. Relief was also granted pursuant to section 85 of the Family Law Act. Consequently, the court made orders on 30 April 1999 that the second and third respondents transfer certain properties to the first respondent, that they transfer to the applicant and the first respondent as tenants in common another property and it made certain declarations.

By notice of appeal dated 27 May 1999 the second and third respondents appealed against two of those orders and on
31 May the applicant appealed against some of the orders made.  Before those appeals were heard the High Court on
17 June gave judgment in Re: Wakim; ex parte McNally (1999) 73 ALJR 839 invalidating legislation purporting to confer state jurisdiction on Federal Courts. Then on 8 November 1999 the Full Court of the Family Court made a declaration in purported compliance with section 11(1)(d) of the Federal Courts (State Jurisdiction) Act 1999 that it had no jurisdiction to hear so much of the appeal as related to a state matter.

The matter then came before this Court by way of appeal on
21 February this year and this Court then held on 10 March that it was unclear whether the orders which the learned Family Court judge made were orders which he could not make because they involved only state jurisdiction or whether they were orders which he could notwithstanding Wakim have made because they came within the accrued jurisdiction of the Family Court. For that reason this Court considered that it was unclear whether the appeals were properly before this Court pursuant to the Federal Courts (State Jurisdiction) Act 1999.

The problem has now been rectified to the extent that the matters were in any event within the accrued jurisdiction of the Family Court they have now been cross-vested to this Court pursuant to the Federal cross-vesting legislation, the validity of which was not affected by Wakim.  Consequently, all of the matters the subject of the appeals are properly now before this Court.

In the meantime the parties have agreed on how the substantive matters in dispute should be resolved. However, as any order giving effect to what has been agreed alters the interests of parties to the marriage in property this Court must be satisfied that it is appropriate to make the order pursuant to section 79 of the Family Law Act.

The orders which we are asked to make are set out in a document which has been handed up to me by Mr Keim for the applicant.  All parties have had the benefit of legal advice.  Issues involving complex legal and factual matters remain in dispute and all parties are concerned to avoid further costs.  The attitude which the parties have taken appears to me to be a reasonable response to these difficulties and I would be satisfied that it is appropriate to make the orders sought in the draft which has been handed up.  I would accordingly make orders in terms of the draft handed up to me, initialled by me and placed with the file.

THOMAS JA:  I agree.

DOUGLAS J:  I agree.

DAVIES JA:  The orders are as I have indicated.

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