Jess & Jess & Ors

Case [2013] FamCA 863

FAMILY COURT OF AUSTRALIA

JESS & JESS & ORS [2013] FamCA 863
FAMILY LAW – INJUNCTION – anti - anti-suit injunction – where the applicant wife seeks orders that would restrain the second, fourth and twenty-ninth respondents from commencing or pursuing proceedings in any other court to restrain the wife from continuing with proceedings in this court – orders made restraining the second, fourth and twenty-ninth respondents from commencing or pursuing proceedings in any other court to restrain the applicant wife continuing with this proceeding pending the hearing of the determination by this court of the challenge to its jurisdiction.
Family Law Act 1975 (Cth) s 79A; 90G; 90K; 106B; 117
Evidence Act 1995 (Cth) s 128
Family Law Rules 2004 (Cth) r 13.05
McCarney v McCarney (1977) FLC 90-200
Esmore v Esmore (1979) FLC 90-711
Smith and Saywell (1980) FLC 90-856
Bak and Bak (1980) FLC 90-877
Baba v Jarvinen (1980) FLC 90-882
Savage v Hodgson (1982) FLC 91-281
Beecham (Australia) Pty Ltd v Roque Pty Ltd (1987) 11 NSWLR 1
Société Aerospatiale v Lee Kui Jak [1987] AC 871
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538
CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
Incitec Ltd v Alkimos Shipping Company (2004) 138 FCR 496
Pan Australia Shipping Pty Ltd v The Ship Comandate [2006] FCA 881
TS Production LLC v Drew Pictures Pty Ltd [2008] FCAFC 194
Lederer v Anor v Hunt (2007) 208 FLR 120
BHPB Freight Pty Ltd v Cosco Oceania Chartering Pty Ltd [2008] FCA 551
Yen v Yen [2010] Fam CA 1
APPLICANT: Ms E Jess
1st RESPONDENT: Mr N Jess
2nd to 29th RESPONDENTS: Mr Jess (Jnr) & Ors
FILE NUMBER: MLF 3444 of 2006
DATE DELIVERED: 5 November 2013
PLACE DELIVERED: Adelaide
PLACE HEARD: Adelaide
JUDGMENT OF: Berman J
HEARING DATE: 12 September, 18 September and 24 September 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Glick of Senior Counsel
SOLICITOR FOR THE APPLICANT: Kenna Teasdale Lawyers
COUNSEL FOR THE 1ST RESPONDENT: Mr McCormick
SOLICITOR FOR THE 1ST RESPONDENT: Carew Counsel Solicitors
COUNSEL FOR THE 2ND RESPONDENT: Mr Brown of Senior Counsel and Mr Mereine and Mr Waller
SOLICITOR FOR THE 2ND RESPONDENT: HWL Ebsworth Lawyers

Orders

  1. That pending the hearing of the determination by this Honourable Court of the challenge to its jurisdiction, the Second, Fourth and Twenty-Ninth Respondents be and are hereby restrained from commencing or pursuing proceedings in any other court to restrain the Wife continuing with this proceeding.

  2. The extent to which the Second, Fourth to Twenty-Ninth Respondents pay the Wife’s costs of and incidental to this application is reserved.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: MLF 3444 of 2006

Ms E Jess

Applicant

And

Mr N Jess

First Respondent

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AGLC
Jess & Jess & Ors [2013] FamCA 863
Case
[2013] FamCA 863
Decision Date

CaseChat Overview and Summary

In the matter of *Jess & Jess & Ors*, Berman J of the Supreme Court of Victoria considered an application by the Wife seeking to restrain the Second, Fourth, and Twenty-Ninth Respondents from commencing or pursuing proceedings in any other court to prevent her from continuing with the current proceeding. The dispute arose in the context of family law proceedings.

The primary legal issue before the Court was whether it had jurisdiction to grant the interlocutory relief sought by the Wife, specifically an injunction to prevent the Respondents from initiating parallel proceedings elsewhere. This involved determining the Court's power to manage its own proceedings and prevent vexatious or oppressive litigation.

Berman J reasoned that the Court possessed the inherent power to prevent its process from being used for improper purposes, including the obstruction of justice or the harassment of a party. The Court found that allowing the Respondents to initiate proceedings in another jurisdiction to halt the current matter would undermine the Court's authority and potentially lead to conflicting judgments. Consequently, the Court determined it had jurisdiction to grant the injunction.

Accordingly, the Court ordered that pending the hearing and determination of the challenge to its jurisdiction, the Second, Fourth, and Twenty-Ninth Respondents be restrained from commencing or pursuing proceedings in any other court to restrain the Wife from continuing with the present proceeding. The question of costs associated with this application was reserved.

Orders

Orders of the court

1.

That pending the hearing of the determination by this Honourable Court of the challenge to its jurisdiction, the Second, Fourth and Twenty-Ninth Respondents be and are hereby restrained from commencing or pursuing proceedings in any other court to restrain the Wife continuing with this proceeding.

2.

The extent to which the Second, Fourth to Twenty-Ninth Respondents pay the Wife’s costs of and incidental to this application is reserved.

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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