Jess and Ors & Jess and Ors - [2014] FamCAFC 227

FAMILY COURT OF AUSTRALIA

JESS AND ORS & JESS AND ORS

[2014] FamCAFC 227

FAMILY LAW – APPEAL – INJUNCTIONS – Where the first respondent commenced property settlement proceedings in the Family Court of Australia in which she sought to set aside a Declaration of Trust and a Deed of Settlement by which earlier proceedings in the Family Court and the Supreme Court of Victoria had been compromised – Where an anti-anti-suit injunction had been granted restraining the appellants from commencing proceedings in the Supreme Court of Victoria to restrain the first respondent from continuing the proceedings in the Family Court – Whether the injunction finally determined the forum for the dispute – The injunction does not prevent a transfer of the proceedings under the cross-vesting regime – The injunction does no more than temporarily restrain proceedings being commenced to prevent the continuation of the proceedings in the Family Court, and was designed only to allow the Family Court to determine whether the proceedings should be summarily dismissed, stayed or transferred to the Supreme Court.

FAMILY LAW – APPEAL – LEAVE TO APPEAL – The Full Court of the Family Court has traditionally required an applicant for leave to appeal to demonstrate an error of principle and/or a substantial injustice – Whether the Full Court should instead adopt the test enunciated in Bienstein v Bienstein (2003) 195 ALR 225 and applied in the Full Court of the Federal Court – Matter discussed but left open for later consideration – Leave to appeal should be refused on either test.

Judiciary Act 1903 (Cth), s 34(2)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), s 4(1), s 5(4)

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Anisminic Ltd v Foreign Compensation Commission (1968) 2 QB 862
Bienstein v Bienstein (2003) 195 ALR 225
Décor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397
Fitzpatrick & Fitzpatrick [2005] FamCA 497
Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
Re Wakim; Ex parte McNally (1999) 198 CLR 511

Rutherford and Rutherford (1991) FLC 92-255
Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238
Samsung Electronics Co Limited v Apple Inc [2013] FCAFC 138

1^ST TO 10^TH APPELLANTS:

Mr Jess Jnr and others

1^ST RESPONDENT:

Ms Jess

2^ND RESPONDENT:

Mr Jess

3^RD TO 20^TH RESPONDENTS:

H Company and others

FILE NUMBER:

MLF

3444

2006

APPEAL NUMBER:

SOA

2013

DATE DELIVERED:	27 November 2014
PLACE DELIVERED:	Perth

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bryant CJ, Thackray & Ainslie-Wallace JJ

HEARING DATE:

30 June 2014 – last written submission 18 July 2014

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

5 November 2013

LOWER COURT MNC:

[2013] FamCA 863

REPRESENTATION

COUNSEL FOR THE APPELLANTS:

Mr Waller QC &
Mr Mereine

SOLICITOR FOR THE APPELLANTS:

HWL Ebsworth Lawyers

COUNSEL FOR THE 1

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.

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Details

Case: [2014] FamCAFC 227
Decision Date: 27 November 2014

CaseChat Overview and Summary

The appellants sought leave to appeal a decision made in the Family Court of Australia, which had granted an anti-anti-suit injunction restraining them from initiating proceedings in the Supreme Court of Victoria. The injunction was granted to prevent the appellants from interfering with proceedings the first respondent had commenced in the Family Court, seeking to set aside a Declaration of Trust and a Deed of Settlement. The legal issues before the court included whether the injunction determined the forum for the dispute and the appropriate test for leave to appeal.

The court determined that the injunction did not finally determine the forum for the dispute, as it only temporarily restrained proceedings being commenced to prevent the continuation of the proceedings in the Family Court. The injunction was designed to allow the Family Court to determine whether the proceedings should be summarily dismissed, stayed, or transferred to the Supreme Court. Regarding the test for leave to appeal, the court discussed whether to adopt the test enunciated in Bienstein v Bienstein (2003) 195 ALR 225, but left the matter open for later consideration. The court held that leave to appeal should be refused under either test.

The court dismissed the application for leave to appeal and the application to adduce further evidence. Each party was at liberty to make an application for costs incurred in relation to the application for leave to appeal. The party or parties against whom an order for costs was sought had 21 days from service in which to make written submissions in answer thereto, and the party or parties seeking costs were at liberty to reply within seven days of service of such responding submissions. Each party was required to endorse on the cover sheet of each submission concerning costs the date on which a copy of the submission was served on the other party.

Orders

Orders of the court

The application for leave to appeal contained in the Notice of Appeal filed on 18 November 2013 and amended on 11 July 2014 be dismissed.

The application in an appeal to adduce further evidence filed on 27 June 2014 be dismissed.

Each party be at liberty, within 21 days of the date of these orders, to make an application for costs incurred in relation to the application for leave to appeal, by filing written submissions in support of the application and serving them on the party or parties against whom costs are sought.

The party or parties against whom an order for costs is sought have 21 days from service in which to make written submissions in answer thereto, by filing such submissions and serving them on the other party.

Within seven days of service of such responding submissions, the party or parties seeking costs be at liberty to reply by filing written submissions and serving them on the other party.

Each party endorse on the cover sheet of each submission concerning costs the date on which a copy of the submission was served on the other party.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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