Jorgensen v Jorgensen (No 2) - [2020] FCA 1318

FEDERAL COURT OF AUSTRALIA
Jorgensen v Jorgensen (No 2) [2020] FCA 1318

File number: QUD 176 of 2019

Judgment of: LOGAN J

Date of judgment: 18 August 2020

Legislation: Civil Dispute Resolution Act 2011 (Cth) s 15

Cases cited: Jorgensen v Jorgensen [2019] FCA 1742

Division: General Division

Registry: Queensland

National Practice Area: Other Federal Jurisdiction

Number of paragraphs: 19

Date of hearing: 18 August 2020

Counsel for the Applicant: Mr R Ivessa

Counsel for the First, Third, Fourth and Fifth Respondents: The First Respondent appeared in person and on behalf of the Third, Fourth and Fifth Respondents

Counsel for the Second Respondent: The Second Respondent did not appear

ORDERS

QUD 176 of 2019

BETWEEN:
BRIAN LAURENCE JORGENSEN

Applicant

AND:
ALAN BRADLEY JORGENSEN

First Respondent

TRUDY LEANNE JORGENSEN

Second Respondent

FARMERS FRUIT BOX & PLASTICS PTY LTD ACN 004 359 979 (FORMERLY TEKSID PTY LTD) (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

LOGAN J

DATE OF ORDER:

18 AUGUST 2020

THE COURT ORDERS THAT:
1.The first respondent’s (Mr Alan Jorgensen’s) application of 11 August 2020 be dismissed.
2.The respondents, save for the second respondent, pay the costs of and incidental to the dismissal of the application filed 11 August 2020.
3.The application which is exhibit 1 not be accepted for filling in the Court by the Registrar.
4.The first respondent (Mr Alan Jorgensen) be permitted to appear at trial by audio visual means using the Microsoft Teams platform or by audio means using that platform or such other means as the Court may specify in the event that he files an application so to do on or before 30 September 2020.
5.The second respondent (Ms Trudy Leanne Jorgensen) be removed as a party to the proceeding.
6.Ms Tieu My Nguyen be added as the sixth respondent to the proceeding.
7.Until the sixth respondent files a notice of address for service, service on the sixth respondent may be affected by both:
(a)posting a copy to Suite 1A, Level 2, 802 Pacific Hwy, Gordon, 2072 NSW; and
(b)emailing a copy to amy@platinumpizzaboxes.com.

8.The applicant file and serve on the sixth respondent at the addresses specified in this order, a copy of this order together with the originating application and the evidence it proposes to rely upon at trial on or before 25 August 2020.
9.The sixth respondent file and serve on the applicant, on or before 25 September 2020:
(a)such affidavits, if any, upon which she proposes to rely; and
(b)an outline of submissions of not more than 20 pages.

10.On or before Friday, 2 October 2020 the applicant file and serve a supplementary outline of submissions in reply of not more than 10 pages.
11.The sixth respondent, herself or through any entity she controls, neither institute nor cause to be instituted proceedings nor take or cause to be taken steps in proceedings in this Court with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust or Grancroft Pty Ltd until the determination…

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 Jorgensen v Jorgensen (No 2)

Details

AGLC: Jorgensen v Jorgensen (No 2) [2020] FCA 1318
Case: [2020] FCA 1318
Decision Date: 18 August 2020

CaseChat Overview and Summary

The case of Jorgensen v Jorgensen (No 2) involved proceedings in the Federal Court of Australia. The applicant, Mr. Timothy Gerard McGrath, sought various orders in relation to a trust and a company, with multiple respondents, including Mr. Alan Jorgensen and Ms. Trudy Leanne Jorgensen. The dispute centred around the management and administration of the Rainbow Motor Inn Unit Trust and Grancroft Pty Ltd, and the applicant sought relief to amend the originating application, remove parties, and manage the conduct of the proceedings.

The court was required to determine several legal issues, including whether the applicant’s application should be dismissed or accepted, whether certain parties should be removed or added to the proceeding, and what orders should be made concerning the conduct of the trial and the service of documents. Additionally, the court needed to decide on the costs associated with the application and the manner in which the applicant could appear at the trial.

The court dismissed the application filed on 11 August 2020 and ruled that the application should not be accepted for filing. It permitted the first respondent to appear at trial by audio-visual means, removed the second respondent from the proceeding, and added Ms. Tieu My Nguyen as the sixth respondent. The court provided detailed instructions for service of documents and outlined the procedural steps for the remaining parties, including deadlines for filing affidavits and outlines of submissions. The court also granted the applicant leave to file an amended originating application and reserved costs.

The final orders of the court included the dismissal of the application, the removal and addition of parties, detailed procedural directions, and the granting of leave to file an amended application. The court’s decision was comprehensive, addressing both the procedural and substantive aspects of the case to ensure the proceeding moved forward in an orderly manner.

Orders

Orders of the court

1. The first respondent’s (Mr Alan Jorgensen’s) application of 11 August 2020 be dismissed.

2. The respondents, save for the second respondent, pay the costs of and incidental to the dismissal of the application filed 11 August 2020.

3. The application which is exhibit 1 not be accepted for filling in the Court by the Registrar.

4. The first respondent (Mr Alan Jorgensen) be permitted to appear at trial by audio visual means using the Microsoft Teams platform or by audio means using that platform or such other means as the Court may specify in the event that he files an application so to do on or before 30 September 2020.

5. The second respondent (Ms Trudy Leanne Jorgensen) be removed as a party to the proceeding.

6. Ms Tieu My Nguyen be added as the sixth respondent to the proceeding.

7. Until the sixth respondent files a notice of address for service, service on the sixth respondent may be affected by both:

(a) posting a copy to Suite 1A, Level 2, 802 Pacific Hwy, Gordon, 2072 NSW; and

(b) emailing a copy to amy@platinumpizzaboxes.com.

8. The applicant file and serve on the sixth respondent at the addresses specified in this order, a copy of this order together with the originating application and the evidence it proposes to rely upon at trial on or before 25 August 2020.

9. The sixth respondent file and serve on the applicant, on or before 25 September 2020:

(a) such affidavits, if any, upon which she proposes to rely; and

(b) an outline of submissions of not more than 20 pages.

10. On or before Friday, 2 October 2020 the applicant file and serve a supplementary outline of submissions in reply of not more than 10 pages.

11. The sixth respondent, herself or through any entity she controls, neither institute nor cause to be instituted proceedings nor take or cause to be taken steps in proceedings in this Court with respect to, connected with or arising out of the Rainbow Motor Inn Unit Trust or Grancroft Pty Ltd until the determination of the originating application or other order of the Court.

12. The applicant be granted leave to file and serve an amended originating application in accordance with the draft which is exhibit “TGM3” to the affidavit of Timothy Gerard McGrath, filed 13 August 2020.

13. Save as otherwise provided by this order, costs be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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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File number:	QUD 176 of 2019
Judgment of:	LOGAN J
Date of judgment:	18 August 2020
Legislation:	Civil Dispute Resolution Act 2011 (Cth) s 15
Cases cited:	Jorgensen v Jorgensen [2019] FCA 1742
Division:	General Division
Registry:	Queensland
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	19
Date of hearing:	18 August 2020
Counsel for the Applicant:	Mr R Ivessa
Counsel for the First, Third, Fourth and Fifth Respondents:	The First Respondent appeared in person and on behalf of the Third, Fourth and Fifth Respondents
Counsel for the Second Respondent:	The Second Respondent did not appear

ORDER MADE BY:	LOGAN J
DATE OF ORDER:	18 AUGUST 2020