This decision has been amended. Please see the end of the decision for a list of the amendments.
Court of Appeal
New South Wales
Case Title:
Grace v Grace
Medium Neutral Citation:
[2014] NSWCA 86
Hearing Date(s):
3 March 2014
Decision Date:
03 March 2014
Before:
McColl JA at [1]; Meagher JA at [2]; Barrett JA at [28]
Decision:
(1) Dismiss the appeal for want of jurisdiction. (2) Appellants pay the respondents' costs of the proceedings in this Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
PRACTICE AND PROCEDURE - APPEAL - JURISDICTION - whether appeal within s 7(5) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) - subject-matter of appeal includes proper exercise of discretion as to costs - underlying proceedings involved exercise by State Court of federal jurisdiction under the Family Law Act 1975 (Cth) - s 117 of Family Law Act 1975 confers and describes discretion as to costs - whether an appeal seeking relief by way of re-exercise of that costs discretion involves a matter arising under the Family Law Act 1975
[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
Grace v Grace [2014] NSWCA 86
Case
[2014] NSWCA 86
Decision Date
CaseChat Overview and Summary
In *Grace v Grace*, the appellants sought to appeal a decision of the primary judge concerning costs. The underlying proceedings involved the exercise of federal jurisdiction by a State Court under the *Family Law Act 1975* (Cth), specifically concerning the discretion conferred by section 117 of that Act regarding costs. The appeal was heard by McColl, Meagher and Barrett JJA of the Court of Appeal of the Supreme Court of New South Wales.
The central legal issue before the Court of Appeal was whether the appeal fell within the jurisdiction conferred by section 7(5) of the *Jurisdiction of Courts (Cross-vesting) Act 1987* (Cth). This required the court to determine whether an appeal seeking the re-exercise of a costs discretion, which itself arose under the *Family Law Act 1975*, constituted a "matter arising under" that Act for the purposes of the cross-vesting legislation.
The Court of Appeal held that the appeal was not a matter arising under the *Family Law Act 1975*. It reasoned that while the original costs discretion was conferred by that Act, the appeal itself, concerning the exercise of that discretion, did not engage the substantive provisions of the *Family Law Act*. Therefore, section 7(5) of the *Jurisdiction of Courts (Cross-vesting) Act 1987* did not confer jurisdiction on the Court of Appeal to hear the appeal.
Consequently, the Court of Appeal ordered that the appeal be dismissed for want of jurisdiction, and the appellants were ordered to pay the respondents' costs of the proceedings in the Court of Appeal.
Orders
Orders of the court
(1) Dismiss the appeal for want of jurisdiction.
(2) Appellants pay the respondents' costs of the proceedings in this Court.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]