Kettle & Baker & Green (No. 2) - [2007] FamCA 1651

FAMILY COURT OF AUSTRALIA

KETTLE & BAKER & GREEN (NO. 2)

[2007] FamCA 1651

FAMILY LAW - REINSTATEMENT OF APPEALS – Appeals deemed abandoned – Failure to file pre-argument statement – Appeals reinstated and consolidated

FAMILY LAW - STAY APPLICATION – Order to sell part of land

FAMILY LAW - COSTS – Considerable expense to the respondents – Costs in relation to directions reserved – Appellant to pay the respondents costs in relation to the reinstatement of the appeal fixed at $1,100

APPELLANT:

MR KETTLE

FIRST RESPONDENT:

SECOND RESPONDENT:

MS BAKER

MS GREEN

TRUSTEE

PETER SHEEHY

APPEAL NUMBER:

2,3,19,20&69

2007

FILE NUMBER:

BRF

2360

2002

FILE NUMBER:

BRF

1456

2001

DATE DELIVERED:

26 November 2007

PLACE DELIVERED:

Brisbane

JUDGMENT OF:

May J

HEARING DATE:

26 November 2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kettle appeared for and on his own behalf

SOLICITOR FOR THE RESPONDENT:

Ms R Ellis

COUNSEL FOR THE TRUSTEE

Ms P Kingswell

INDEPENDENT CHILDREN’S LAWYER:

Mr D Carter

Orders

That the appeals numbered NA 2, 3, 19, 20 & 69 of 2007 be reinstated.
That the appeals numbered NA 2, 3, 19, 20 & 69 of 2007 be consolidated and heard together.
That the appellant be granted leave to file an Application in a Case, sworn on 6 November 2007 and an affidavit sworn 7 November 2007 which contains an application asking for a stay of the orders made by The Honourable Justice O’Reilly on 31 October 2007.
That the appellant file and serve in the Regional Appeal Registry at Brisbane, a list of documents in relation to the stay application and the transcript issue by 4.00pm on 28 November 2007.
That the Application in a Case filed by leave seeking a stay be listed on a date to be advised in Sydney in the week commencing 3 December 2007 with the parties to appear by way of video-link from Brisbane.
That the application contained in paragraph 2 of the Application in a Case filed on 23 October 2007 in relation to transcripts be listed on a date to be advised in the Full Court sittings in Sydney in the week commencing 3 December 2007 with the parties to appear by way of video-link from Brisbane.
That the appellant be responsible for the preparation of the appeal books to comprise each of the documents listed in and arranged in the order of the appeal index as settled by the Regional Appeals Registrar.
That the appellant file four (4) copies of the appeal books in the Brisbane Appeal Registry by 4.00pm on 25 January 2008.
That the appellant file and serve one (1) copy of the appeal book on the Trustee, Mr Peter Sheehy and two (2) copies of the appeal book on the solicitors for the respondents.
That the appellant file and serve a Summary of Argument and a List of Authorities to be relied upon by 4.00pm on 1 February 2008.
That the respondents and the Trustee file and serve on the…

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 Kettle & Baker & Green (No. 2)

Details

AGLC: Kettle & Baker & Green (No. 2) [2007] FamCA 1651
Case: [2007] FamCA 1651
Decision Date: 26 November 2007

CaseChat Overview and Summary

The matter before May J concerned appeals that had been deemed abandoned due to the appellant's failure to file a pre-argument statement. The respondents sought to maintain the abandonment, while the appellant sought the reinstatement of the appeals and a stay of certain orders made by Justice O’Reilly on 31 October 2007.

The court was required to determine whether to reinstate the abandoned appeals, whether to consolidate them, and whether to grant a stay of the earlier orders. Additionally, the court needed to make directions regarding the preparation and filing of appeal books, summaries of argument, and lists of authorities, as well as consider the costs of the proceedings.

May J ordered the reinstatement and consolidation of the appeals. Leave was granted for the appellant to file an application for a stay of Justice O’Reilly's orders, with specific timelines set for the filing of relevant documents and the listing of the stay application. The appellant was also directed to prepare and file the appeal books, and to serve summaries of argument and lists of authorities by stipulated dates. The respondents and the Trustee were given a subsequent deadline to file their respective summaries and authorities. The costs of the directions hearing were reserved to the Full Court, but the appellant was ordered to pay the respondents' costs in relation to the reinstatement of the appeals, fixed at $1,100. The appeals were subsequently listed for hearing in March 2008.

Orders

Orders of the court

That the appeals numbered NA 2, 3, 19, 20 & 69 of 2007 be reinstated.

That the appeals numbered NA 2, 3, 19, 20 & 69 of 2007 be consolidated and heard together.

That the appellant be granted leave to file an Application in a Case, sworn on 6 November 2007 and an affidavit sworn 7 November 2007 which contains an application asking for a stay of the orders made by The Honourable Justice O’Reilly on 31 October 2007.

That the appellant file and serve in the Regional Appeal Registry at Brisbane, a list of documents in relation to the stay application and the transcript issue by 4.00pm on 28 November 2007.

That the Application in a Case filed by leave seeking a stay be listed on a date to be advised in Sydney in the week commencing 3 December 2007 with the parties to appear by way of video-link from Brisbane.

That the application contained in paragraph 2 of the Application in a Case filed on 23 October 2007 in relation to transcripts be listed on a date to be advised in the Full Court sittings in Sydney in the week commencing 3 December 2007 with the parties to appear by way of video-link from Brisbane.

That the appellant be responsible for the preparation of the appeal books to comprise each of the documents listed in and arranged in the order of the appeal index as settled by the Regional Appeals Registrar.

That the appellant file four (4) copies of the appeal books in the Brisbane Appeal Registry by 4.00pm on 25 January 2008.

That the appellant file and serve one (1) copy of the appeal book on the Trustee, Mr Peter Sheehy and two (2) copies of the appeal book on the solicitors for the respondents.

10.

That the appellant file and serve a Summary of Argument and a List of Authorities to be relied upon by 4.00pm on 1 February 2008.

11.

That the respondents and the Trustee file and serve on the appellant and the other respondents, a Summary of Argument and List of Authorities to be relied upon by 15 February 2008.

12.

That each party have liberty to apply for any further directions to the Honourable Justice May upon the giving of four days notice in writing to the other party and to the Regional Appeals Registrar in the Brisbane Registry.

13.

That the costs of and incidental to the making of directions in this matter today be reserved to the Full Court.

14.

That the appellant pay the respondents costs in relation to the reinstatement of the appeals fixed in the sum of $1,100 within 28 days of today’s date.

15.

That the appeal be listed before the Full Court in the March sittings at Brisbane in the week commencing 3 March 2008.

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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