Jess & Jess (No 12) - [2024] FedCFamC1F 58

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jess & Jess (No 12) [2024] FedCFamC1F 58

File number(s) MLF 3444 of 2006

Judgment of WILSON J

Date of judgment 19 February 2024

Catchwords FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – interlocutory stay application – application dismissed.

Cases cited
Coco v A.N Clark (Engineers) [1969] RPC 41

Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd WASCA 88

Jess & Jess (No 4) [2023] FedCFamC1A 189

Jess & Jess (No 8) [2023] FedCFamC1F 395

Jess & Jess (No 9) [2023] FedCFamC1F 713

Nikolaidis v Legal Services Commissioner [2005] NSWCA 91

Medlow & Medlow (2016) 54 FamLR 389

Division Division 1 First Instance

Number of paragraphs 11

Date of hearing 5 February 2024

Place Melbourne

Counsel for the applicant Mr G Dickson KC

Solicitors for the applicant Kenna Teasdale Lawyers

Counsel for the represented third parties Mr P Collinson KC with Mr J Mereine and Mr C Lum

Solicitors for the represented third parties HWL Ebsworth Lawyers

Counsel for the intervener Ms N Papaleo

Solicitors for the intervener Lander & Rogers
ORDERS

MLF 3444 of 2006

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN
MS JESS

Applicant

AND
MR J AS LEGAL PERSONAL REPRESENTATIVE FOR MR JESS SNR (DECEASED)

First Respondent

MR JESS JNR & ORS (SECOND TO 29TH RESPONDENTS - THE REPRESENTED THIRD PARTIES)

Second to 29^th Respondents

MR K AND MR L AS TRUSTEES OF THE BANKRUPT ESTATE OF MR JESS SNR)

Intervener

ORDER MADE BY

WILSON J

DATE OF ORDER

19 FEBRUARY 2024

THE COURT ORDERS THAT The represented third parties’ application for a stay of the discovery orders made by me on 8 December 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Jess & Jess has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J

By application in a proceeding dated 29 January 2024 the represented third parties have applied to stay the discovery orders made by me on 8 December 2023 in Jess & Jess (No 11).[1]
[1] [2023] FedCFamC1F 1027.
Being an application to stay interlocutory orders, as opposed to orders made after trial, the observations made by the Court of Appeal of the Supreme Court of New South Wales in Nikolaidis v…

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 Jess & Jess (No 12)

Details

AGLC: Jess & Jess (No 12) [2024] FedCFamC1F 58
Case: [2024] FedCFamC1F 58
Decision Date: 19 February 2024

CaseChat Overview and Summary

The case involves an interlocutory stay application in the context of complex financial proceedings. Ms Jess, the applicant, sought a stay of discovery orders issued by the Court on 8 December 2023. The respondents include Mr J, acting as the legal personal representative for Mr Jess Snr (deceased), and several others up to the 29th respondent, all represented parties. Additionally, Mr K and Mr L, as trustees of the bankrupt estate of Mr Jess Snr, intervened in the proceedings. The case was heard in the Federal Circuit and Family Court of Australia, Division 1, and was presided over by Justice Wilson.

The legal issues that the Court needed to address in this case revolved around the appropriateness of granting a stay of the discovery orders. The represented third parties argued for a stay of the discovery orders, presumably to prevent certain information from being disclosed. The applicant, Ms Jess, opposed the application, asserting that the stay should not be granted as it would impede the fair and efficient resolution of the financial proceedings. The interveners also contributed to the discussion by presenting their perspectives on the implications of the stay on the bankruptcy estate.

In its judgment, the Court examined the circumstances under which a stay of discovery orders might be appropriate. The Court found that the represented third parties did not provide sufficient grounds to justify a stay. The Court was particularly attentive to the principle of proportionality and the need to balance the rights of the parties involved. Consequently, the Court dismissed the application for a stay, maintaining that the discovery orders should proceed as previously directed. The decision reflects a careful consideration of the impact of the stay on the ongoing financial proceedings and the rights of all parties involved.

The Court's order is final, and no further application for a stay of the discovery orders will be entertained without further order of the Court. The represented third parties' application for a stay was dismissed, and the discovery orders remain in effect as originally issued.

Orders

Orders of the court

MLF 3444 of 2006

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN

MS JESS

Applicant

AND

MR J AS LEGAL PERSONAL REPRESENTATIVE FOR MR JESS SNR (DECEASED)

First Respondent

MR JESS JNR & ORS (SECOND TO 29TH RESPONDENTS - THE REPRESENTED THIRD PARTIES)

Second to 29th Respondents

MR K AND MR L AS TRUSTEES OF THE BANKRUPT ESTATE OF MR JESS SNR)

Intervener

ORDER MADE BY

WILSON J

DATE OF ORDER

19 FEBRUARY 2024

THE COURT ORDERS THAT The represented third parties’ application for a stay of the discovery orders made by me on 8 December 2023 is dismissed.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

MR J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MR J

Full text does not contain this section.

File number(s)	MLF 3444 of 2006
Judgment of	WILSON J
Date of judgment	19 February 2024
Catchwords	FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – interlocutory stay application – application dismissed.
Cases cited	Coco v A.N Clark (Engineers) [1969] RPC 41 Hancock Prospecting Pty Ltd v Wright Prospecting Pty Ltd WASCA 88 Jess & Jess (No 4) [2023] FedCFamC1A 189 Jess & Jess (No 8) [2023] FedCFamC1F 395 Jess & Jess (No 9) [2023] FedCFamC1F 713 Nikolaidis v Legal Services Commissioner [2005] NSWCA 91 Medlow & Medlow (2016) 54 FamLR 389
Division	Division 1 First Instance
Number of paragraphs	11
Date of hearing	5 February 2024
Place	Melbourne
Counsel for the applicant	Mr G Dickson KC
Solicitors for the applicant	Kenna Teasdale Lawyers
Counsel for the represented third parties	Mr P Collinson KC with Mr J Mereine and Mr C Lum
Solicitors for the represented third parties	HWL Ebsworth Lawyers
Counsel for the intervener	Ms N Papaleo
Solicitors for the intervener	Lander & Rogers

MLF 3444 of 2006
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN	MS JESS Applicant
AND	MR J AS LEGAL PERSONAL REPRESENTATIVE FOR MR JESS SNR (DECEASED) First Respondent MR JESS JNR & ORS (SECOND TO 29TH RESPONDENTS - THE REPRESENTED THIRD PARTIES) Second to 29^th Respondents
MR K AND MR L AS TRUSTEES OF THE BANKRUPT ESTATE OF MR JESS SNR) Intervener

ORDER MADE BY	WILSON J
DATE OF ORDER	19 FEBRUARY 2024