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Jayce and Pierce (No. 2)

Jayce and Pierce (No. 2)

Case [2020] FamCA 302 30 April 2020

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FAMILY COURT OF AUSTRALIA

JAYCE & PIERCE (NO. 2)

[2020] FamCA 302

FAMILY LAW – PRACTICE AND PROCEDURE – Slip Rule Application – Primary judgment to be amended for mathematical error under the slip rule.

Family Law Rules 2004 (Cth) r 17.02

Jayce & Pierce [2019] FamCA 955
Milham and Stanford [2001] FamCA 294
TWN & PAQ [2005] FamCA 677

APPLICANT:

Ms Jayce

RESPONDENT:

Mr Pierce

FILE NUMBER:

PAC

3716

2016

DATE DELIVERED:

30 April 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

15 April 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Ms Grew of Matthews Folbigg Pty Ltd

SOLICITOR FOR THE RESPONDENT:

Mr Dunn of Watts McCray Lawyers

Orders

That pursuant to Rule 17.02 of the Family Law Rules 2004 (Cth) the sum provided for in Order 2 of Orders made 12 December2019 be varied to “$48,236”.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Jayce & Pierce has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 3716 of 2016

Ms Jayce

Applicant

And

Mr Pierce

Respondent

REASONS FOR JUDGMENT

The discrete application for determination is an application by the primary applicant wife for an amendment to final orders made 12 December 2019 (Jayce & Pierce [2019] FamCA 955) pursuant to the slip rule provisions of rule 17.02 of the Family Law Rules.
Relevantly Rule 17.02 of the Family Law Rules 2004 provides:
(1)The court may at any time vary or set aside an order, if:
(a)it was made in the absence of a party; or
(b)it was obtained by fraud; or
(c)it is interlocutory; or
(d)it is an injunction or for the appointment of a receiver; or
(e)it does not reflect the intention of the court; or
(f)the party in whose favour it was made consents ; or
(g)there is a clerical mistake in the order; or
(h)there is an error arising in the order from an accidental slip or omission.
(2)Subrule (1) does not affect the power of the court to vary or terminate the operation of an order by a further order.
In Milham and Stanford [2001] FamCA 294 (18 May 2001) (and see also TWN & PAQ [2005] FamCA 677) the Full Court of the Family Court reviewed the well settled law at [23] and following:
23.Kirby J in the High Court decision of DJL v Central Authority 170 ALR 659 at 685 considered this part of the Family Court Rules. He stated:
[93]Some accidental slips…

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 Jayce and Pierce (No. 2)

Details

AGLC: Jayce and Pierce (No. 2) [2020] FamCA 302
Case: [2020] FamCA 302
Decision Date: 30 April 2020

CaseChat Overview and Summary

This matter concerned an application to vary a previous order made by Foster J in the Federal Circuit and Family Court of Australia. The parties, Jayce and Pierce, sought to alter the financial sum stipulated in an order dated 12 December 2019.

The central legal issue before the court was whether to vary the monetary amount previously ordered, pursuant to Rule 17.02 of the Family Law Rules 2004 (Cth). This rule permits the court to vary orders in certain circumstances, and the parties were seeking to invoke this provision.

Foster J considered the application and, applying Rule 17.02, ordered that the sum provided for in the previous order of 12 December 2019 be varied to $48,236. The court's reasoning and the specific factors leading to this variation are not detailed in the provided text, but the outcome reflects an exercise of the court's power to amend its prior financial orders.

Orders

Orders of the court

That pursuant to Rule 17.02 of the Family Law Rules 2004 (Cth) the sum provided for in Order 2 of Orders made 12 December2019 be varied to “$48,236”.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Jayce and Pierce (No. 2) [2020] FamCA 302

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Cases cited in this decision · 18 of 18 shown

Jayce and Pierce And Anor
[2019] FamCA 955 Para 1

…application for determination is an application by the primary applicant wife for an amendment to final orders made 12 December 2019 ( Jayce & Pierce [2019] FamCA 955) pursuant to the slip rule provisions of rule 17.02 of the Family Law Rules.…
Noetel & Quealey
[2005] FamCA 677 Para 3

…In Milham and Stanford [2001] FamCA 294 (18 May 2001) (and see also TWN & PAQ [2005] FamCA 677) the Full Court of the Family Court reviewed the well settled law at [23] and following: 23.Kirby J in the High Court decision of DJL v Central Authority 170 ALR 659 at 685 considered this part of the Family Court Rules.…
Milham v Stanford
[2001] FamCA 294 Para 3

…In Milham and Stanford [2001] FamCA 294 (18 May 2001) (and see also TWN & PAQ [2005] FamCA 677) the Full Court of the Family Court reviewed the well settled law at [23] and following: 23.Kirby J in the High Court decision of DJL v Central Authority 170 ALR 659 at 685 considered this part of the Family Court Rules.…
DJL v Central Authority
[2000] HCA 17 Para 3

…Full Court of the Family Court reviewed the well settled law at [23] and following: 23.Kirby J in the High Court decision of DJL v Central Authority 170 ALR 659 at 685 considered this part of the Family Court Rules. He stated: [93]Some accidental slips or omissions are capable of correction at common law. [ A…
Gould v Vaggelas
[1985] HCA 75 Para 3

…[1893] AC 638 at 640; Fritz v Hobson (1880) 14 ChD 542 at 560; Shaddock per Mason ACJ, Wilson and Deane JJ at CLR 594-5; Gould v Vaggelas (1985) 157 CLR 215; 62 ALR 527 and Tak Ming Co Ltd v Yee Sang Metal Supplies Co [1973] 1 WLR 300. It is well settled that the application of the slip rule is not confined to giving…
Commonwealth v McCormack
[1984] HCA 57 Para 3

…addock ); to order repayment of moneys previously paid by the defendant where the subsequent appeal was upheld ( Commonwealth v McCormack (1984) 155 CLR 273; 55 ALR 185); to alter a wrong date or figure in the orders, where the parties and the court both used the same wrong date or figure, but the correct figure had…
Russell v Russell
[1976] HCA 23 Para 3

…if the proposed amendment requires the exercise of an independent discretion or is a matter upon which a real difference might exist. ( Russell v Russell (1999) FLC 92-877; 25 Fam LR 629). As the Full Court of the Supreme Court of Victoria said in Brew v Whitlock (No. 3) [1968] V.R. 504 at 506: “In our view it is necessary…
Bailey v Marinoff
[1971] HCA 49 Para 3

…ce of a previously perfected order will be no barrier. [ Preston Banking Co v William Allsup & Sons [1895] 1 Ch 141 at 144; Bailey v Marinoff (1971) 125 CLR 529 at 540]. 24.Lockhart J of the Full Court of the Federal Court in Elyard Corporation Pty Ltd v DDB Needham Sydney Pty Ltd 133 ALR 206 considered the circumsta…
Ivanhoe Gold Corporation Ltd v Symonds
[1906] HCA 71 Para 3

…liberate decision: see Arnett v Holloway [1960] VR 22; Re Army and Navy Hotel (1886) 31 Ch D 644; and Ivanhoe Gold Corp Limited v Symonds (1906) 4 CLR 642. The slip rule may be invoked irrespective of whether the order has been drawn up, passed and entered: Milson v Carter [1893] AC 638 at 640; Fritz v Hobson (1880…
[1893] AC 638
[1893] AC 638 Para 3

…s (1906) 4 CLR 642. The slip rule may be invoked irrespective of whether the order has been drawn up, passed and entered: Milson v Carter [1893] AC 638 at 640; Fritz v Hobson (1880) 14 ChD 542 at 560; Shaddock per Mason ACJ, Wilson and Deane JJ at CLR 594-5; Gould v Vaggelas (1985) 157 CLR 215; 62 ALR 527 and Ta…
Fritz v Hobson
(1880) 14 ChD 542 Para 3

…be invoked irrespective of whether the order has been drawn up, passed and entered: Milson v Carter [1893] AC 638 at 640; Fritz v Hobson (1880) 14 ChD 542 at 560; Shaddock per Mason ACJ, Wilson and Deane JJ at CLR 594-5; Gould v Vaggelas (1985) 157 CLR 215; 62 ALR 527 and Tak Ming Co Ltd v Yee Sang Metal Supplies C…
[1984] QB 686
[1984] QB 686 Para 3

…al slips or omissions are capable of correction at common law. [ Ainsworth v Wilding [1896] 1 Ch 673 at 677 per Romer J; R v Cripps; Ex parte Muldoon [1984] QB 686 at 695] This facility is now commonly replaced by provisions in rules of court. In the Family Court of Australia, that is where the ‘slip rule’ may b…
[1908] 2 KB 410
[1908] 2 KB 410 Para 3

…e numerous and varied. Examples of the application of the rule include amendments, to allow a proper order for costs ( Armitage v Parsons [1908] 2 KB 410); to increase the amount of an award of damages ( Storey and Keers Pty Limited v Johnstone (1987) 9 NSWLR 446); to permit a proper calculation of interest ( Ninn…
[1933] 2 KB 417
[1933] 2 KB 417 Para 3

…been wrongly named or misdescribed [ Thynne v Thynne [1955] P 272 at 314] or is shown to have died or to be non‑existent [ MacCarthy v Agard [1933] 2 KB 417 at 427] corrections may be made. Where, without alteration, it is possible to repair an oversight and prevent injustice by making a supplementary order, the…
[1973] 1 WLR 300
[1973] 1 WLR 300 Para 3

…n ACJ, Wilson and Deane JJ at CLR 594-5; Gould v Vaggelas (1985) 157 CLR 215; 62 ALR 527 and Tak Ming Co Ltd v Yee Sang Metal Supplies Co [1973] 1 WLR 300. It is well settled that the application of the slip rule is not confined to giving effect to the intention of the judge at the time when the court's order was m…
[1901] 1 QB 694
[1901] 1 QB 694 Para 3

…ion results from the inadvertence of a party's legal representative: Fritz v Hobson (1880) 14 ChD 542 at 561-2; Chessum and Sons v Gordon [1901] 1 QB 694; Tak Ming Co Limited at 304; Shaddock per Mason ACJ, Wilson and Deane JJ at CLR 594-5; and Gould v Vaggelas at CLR 274-5. The circumstances in which the slip rul…
Shipwright v Clements
(1890) WN 134 Para 3

…time ( Re J W Challand Pty Limited (1945) 62 WN (NSW) 166); and, to limit the time of an injunction's application ( Shipwright v Clements (1890) WN 134). See also the Supreme Court Practice 1995 (UK) (the White Book) pp. 385-6, Notes 20/11/3 and 20/11/6.” 26.It must also be borne in mind that for the purposes of…
Rajunder Narain Rae v Bijai Govind Sing
18 ER 269 Para 3

…epayment of moneys previously paid by the defendant where the subsequent appeal was upheld ( Commonwealth v McCormack (1984) 155 CLR 273; 55 ALR 185); to alter a wrong date or figure in the orders, where the parties and the court both used the same wrong date or figure, but the correct figure had been availab…

Legislation cited in this decision · 2

Family Law Rules 2004 (Cth)
17.02 2 mentions (from Para 1)
Family Law Act 1975 (Cth)
1 mention