FAMILY COURT OF AUSTRALIA
| KELTON & BRADY AND ANOR | [2017] FamCAFC 186 |
| FAMILY LAW – APPEAL – APPLICATION FOR LEAVE TO APPEAL – where the husband issued a subpoena to the accountant of a discretionary trust – where a notice of objection was filed objecting to part of that subpoena – where the primary judge set aside that part of the subpoena on the basis of “relevance” and “fishing” – whether the primary judge erred in failing to find that the requested documents were “apparently relevant” – whether the primary judge failed to refer to all of the evidence germane to the determination of apparent relevance – whether the primary judge provided adequate reasons – where the relevance of the documents sought to be adduced would be marginal at best – where the applicant failed to identify any discretionary error – application for leave to appeal refused. |
| Family Law Act 1975 (Cth) ss 79, 79(4)(e), 94AA, 94AAA(3) Family Law Regulations 1984 (Cth) reg 15A |
| Hatton, VF v Attorney-General of Commonwealth of Australia, Commonwealth Bank of Australia, and Commonwealth Development Bank of Australia (2000) FLC 93-038 Kennon v Spry (2008) 238 CLR 366 Santos Ltd and Others v Pipelines Authority of SA (1996) 66 SASR 38 Trade Practices Commission v Arnotts Ltd and Ors (No 2) (1989) 88 ALR 90 Waind v. Hill and National Employers’ Mutual General Association Ltd [1978] 1 NSWLR 372 White and Tulloch v White (1995) FLC 92-640 |
| APPLICANT: | Mr Kelton |
| FIRST RESPONDENT: | Mr Brady |
| SECOND RESPONDENT: | Ms Chatfield |
| FILE NUMBER: | BRC | 5404 | of | 2016 |
| APPEAL NUMBER: | NOA | 20 | of | 2017 |
| DATE DELIVERED: | 7 September 2017 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Murphy J |
| HEARING DATE: | 7 September 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 May 2017 |
| LOWER COURT MNC: | [2017] FCCA 1022 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | P Hackett |
| SOLICITOR FOR THE APPLICANT: | Hirst & Co Family Lawyers |
| COUNSEL FOR THE FIRST RESPONDENT: | P A Looney QC |
| SOLICITOR FOR THE FIRST RESPONDENT: | HopgoodGanim Lawyers |
| COUNSEL FOR THE SECOND RESPONDENT: | Mr C Minnery |
| SOLICITOR FOR THE SECOND RESPONDENT: | Nita Stratton-Funk & Associates |
Orders
The applicant be granted leave to rely upon the written outline of argument in reply filed on his behalf.
The first respondent be granted leave to rely upon a Notice of Contention exhibited to the affidavit of Ms J filed on 25 August 2017 and without the necessity to separately file the same.
The application for leave to appeal Order (1) of the orders made by Judge Cassidy on 18 May 2017 be dismissed.
The applicant husband pay the costs of each of the first and second respondents of and incidental to the application for leave to appeal within twenty-eight (28) days of an amount being agreed in writing between the parties as to those costs, or failing such agreement within twenty-eight (28) days of assessment in the amounts so…
Continue reading Kelton & Brady and Anor
Sign in free to access the full text
- AGLC
- Kelton & Brady and Anor [2017] FamCAFC 186
- Case
- [2017] FamCAFC 186
- Decision Date
CaseChat Overview and Summary
The primary legal issue that the court was required to decide was whether the applicants had grounds to appeal the earlier decision. The applicants argued that the decision was flawed and should be overturned, while the respondents contended that the decision was correct and should be upheld. The court had to consider the merits of the appeal and determine whether the applicants had demonstrated that the earlier decision was incorrect or unjust.
In its reasoning, the court found that the applicants had not provided sufficient grounds for the appeal to be successful. The court noted that the earlier decision was a valid exercise of the judge's discretion and that there was no evidence to suggest that it was flawed or unjust. The court also found that the applicants had not demonstrated that the decision had caused them significant harm or prejudice. As a result, the court dismissed the application for leave to appeal and denied the applicants' request to overturn the earlier decision.
The court also granted leave to the applicants to rely upon the written outline of argument in reply filed on their behalf, and to the first respondent to rely upon a Notice of Contention exhibited to the affidavit of Ms J filed on 25 August 2017. The court ordered that the applicants pay the costs of the first and second respondents of and incidental to the application for leave to appeal within twenty-eight (28) days of an amount being agreed in writing between the parties as to those costs, or failing such agreement within twenty-eight (28) days of assessment in the amounts so assessed. The form of the order is subject to the entry of the order in the Court’s records.
Orders
Orders of the court
1.
The applicant be granted leave to rely upon the written outline of argument in reply filed on his behalf.
2.
The first respondent be granted leave to rely upon a Notice of Contention exhibited to the affidavit of Ms J filed on 25 August 2017 and without the necessity to separately file the same.
3.
The application for leave to appeal Order (1) of the orders made by Judge Cassidy on 18 May 2017 be dismissed.
4.
The applicant husband pay the costs of each of the first and second respondents of and incidental to the application for leave to appeal within twenty-eight (28) days of an amount being agreed in writing between the parties as to those costs, or failing such agreement within twenty-eight (28) days of assessment in the amounts so assessed.
5.
I certify for counsel and Queens Counsel.
Note: The form of the order is subject to the entry of the order in the Court’s records.
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
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.