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

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jess & Jess (No 8) [2023] FedCFamC1F 395

File number MLF 3444 of 2006

Judgment of WILSON J

Date of judgment 19 May 2023

Catchwords FAMILY LAW – interlocutory stay application – refused.

Legislation Family Law Act 1975 s 121

Cases cited
Aldridge & Keaton [2009] FamCAFC 106

Bienstein v Bienstein (2003) 30 Fam LR 488

Blakeley & Jaine (No 3) [2020] FamCAFC 781

Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246

Hearne v Street (2008) 235 CLR 125

Jackson & Balen [2009] FamCAFC 131

Keevers & Keevers (No 2) [2022] FedCFamC1F 163

Malloy & Stopford Malloy [2020] FamCAFC 270

Medlow v Medlow (2016) 54 Fam LR 389

Nikolaidis v Legal Services Commissioner [2005] NSWCA 91

Division Division 1 First Instance

Number of paragraphs 16

Date of last submissions 16 May 2023

Date of hearing 16 May 2023

Place Melbourne

Counsel for the applicant Mr G. Dickson KC with Ms R. Matson

Solicitor for the applicant Kenna Teasdale Lawyers

Counsel for the first respondent No appearance

Solicitor for the first respondent No appearance

Counsel for the represented third parties Mr I. G. Waller KC and Mr J. Mereine

Solicitor for the represented third parties HWL Ebsworth Lawyers

Counsel for the intervenors Ms N. Papaleo

Solicitor for the intervenors 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 RESPRESENTATIVE OF MR JESS SNR (DECEASED)

First Respondent

MR JESS JNR AND OTHERS

Represented Third Parties

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

Intervenors

order made by

WILSON J

DATE OF ORDER

19 MAY 2023

THE COURT ORDERS THAT –
1.The represented third parties’ application to stay my orders made 27 April 2023 is dismissed.
2.I adjourn the further hearing of this proceeding to 10:00am on 3 November 2023 for mention in the Major Complex Financial Proceedings List or such earlier date by which the Full Court hears and determines the appeal from Jess & Jess (No 7).

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 the pseudonym Jess & Jess has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
INTRODUCTION

By notice…

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 8)

Details

AGLC: Jess & Jess (No 8) [2023] FedCFamC1F 395
Case: [2023] FedCFamC1F 395
Decision Date

CaseChat Overview and Summary

The represented third parties sought to stay orders made by the court on 27 April 2023, pending the outcome of an appeal. The wife opposed the stay application, and the trustees-in-bankruptcy did not contest the stay application. The represented third parties sought a stay of all orders made on 27 April 2023, arguing that the orders would cause them significant hardship and risk irretrievable detriment. The court considered the nature of the orders, which were interlocutory and did not finally determine the rights of the parties. The court held that a stay is not to be lightly granted and must be justified by an adverse and severe outcome if the proceedings were to continue. The represented third parties argued that the discovery order would cause them significant hardship and risk irretrievable detriment, but the court held that even voluminous disclosure must be given so long as it is relevant. The court dismissed the represented third parties' application to stay the orders made on 27 April 2023.

The legal issues in this case were whether the represented third parties were entitled to a stay of the orders made by the court on 27 April 2023, pending the outcome of an appeal. The court considered the principles applicable to the grant of a stay of interlocutory orders and the arguments advanced by the represented third parties. The court held that a stay is not to be lightly granted and must be justified by an adverse and severe outcome if the proceedings were to continue. The court held that the represented third parties had not demonstrated that the appeal would be rendered nugatory unless the orders were stayed.

The court dismissed the represented third parties' application to stay the orders made on 27 April 2023. The court held that the represented third parties had not demonstrated that the appeal would be rendered nugatory unless the orders were stayed. The court held that even voluminous disclosure must be given so long as it is relevant, and that the represented third parties were entitled to explore remedies on appeal. The court adjourned the further hearing of this proceeding to 10:00am on 3 November 2023 for mention in the Major Complex Financial Proceedings List or such earlier date by which the Full Court hears and determines the appeal from Jess & Jess (No 7).

Orders