Jess and Ors & Jess and Ors

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.