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KNIGHT & ELLINGTON

KNIGHT & ELLINGTON

Case [2018] FamCA 892 5 November 2018

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FAMILY COURT OF AUSTRALIA

KNIGHT & ELLINGTON

[2018] FamCA 892

FAMILY LAW – SUMMARY DISMISSAL – Wife’s application to summarily dismiss husband’s s 79A Application – Where the Full Court has held that the only material to be relied upon in such applications is the material put forward by the respondent – Where the husband’s s 79A Application is not doomed to fail and is not frivolous or vexatious – Application dismissed.

FAMILY LAW – SECURITY FOR COSTS – Wife alternatively sought security for costs in the sum of $50,000 from the husband – Matters identified by the Full Court in Luadaka & Luadaka (1998) FLC 92-830 considered – the weight of the considerations favour there being no order for security for costs – Application dismissed.

Family Law Act 1975 (Cth) ss 79A, 117

Family Law Rules 2004 r 10.12

Pelerman (2000) FLC 93-037

Bigg v Suzi (1998) FLC 92-799
Beck & Beck (2004) FLC 93-181
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352
Gadde & Gadde [2015] FamCA 617
Ricci & Jones [2011] FamCAFC 222
Finch & Finch [2013] FamCA 567
Dunnett & Dunnett [2013] FamCA 529
Luadaka & Luadaka (1998) FLC 92-830
Richards and Duff [2001] FamCA 177
Lan & Hao [2015] FamCA 1149

APPLICANT:

Mr Knight

RESPONDENT:

Ms Ellington

FILE NUMBER:

CSC

677

2007

DATE DELIVERED:

5 November 2018

PLACE DELIVERED:

Cairns

PLACE HEARD:

Melbourne

JUDGMENT OF:	Tree J
HEARING DATE:	2 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richardson

SOLICITORS FOR THE APPLICANT:

Vernon Da Gama & Associates

COUNSEL FOR THE RESPONDENT:

Dr Ingleby

SOLICITORS FOR THE RESPONDENT:

Berger Kordos Lawyers

Orders

The Application in a Case filed by the wife on 2 August 2018 is dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: CSC677/2007

Mr Knight

Applicant

And

Ms Ellington

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

By Initiating Application filed 11 August 2017, Mr Knight (“the husband”) sought orders under s 79A of the Family Law Act, varying earlier consent orders made under s 79 of the Act, which effected a final division of the parties’ matrimonial property. By her Response filed 3 October 2017, Ms Ellington (“the wife”) seeks that the husband’s Initiating Application be dismissed.
On 8 May 2018 the court advised the parties that a Trial Management Hearing, at which the matter would be readied for trial, would be conducted on…

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 KNIGHT & ELLINGTON

Details

AGLC: KNIGHT & ELLINGTON [2018] FamCA 892
Case: [2018] FamCA 892
Decision Date: 5 November 2018

CaseChat Overview and Summary

In the Family Court of Australia, the wife sought the summary dismissal of the husband's application under section 79A of the *Family Law Act 1975* (Cth). The wife also alternatively sought an order for security for costs against the husband.

The primary legal issue before the Court was whether the husband's section 79A application was so lacking in merit that it should be summarily dismissed. The secondary issue was whether the husband should be ordered to provide security for the wife's costs, and if so, in what amount.

Her Honour considered the Full Court's guidance that in summary dismissal applications, only the material put forward by the respondent (in this instance, the husband) should be relied upon. Applying this principle, the Court found that the husband's section 79A application was not doomed to fail, nor was it frivolous or vexatious. Consequently, the wife's application for summary dismissal was dismissed. Regarding the alternative application for security for costs, the Court considered the relevant factors outlined in *Luadaka & Luadaka* (1998) FLC 92-830 and determined that the weight of these considerations favoured no order being made. Therefore, the wife's application for security for costs was also dismissed.

The Court ordered that the wife's Application in a Case filed on 2 August 2018 be dismissed.

Orders

Orders of the court

The Application in a Case filed by the wife on 2 August 2018 is dismissed.

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.

Citations

AGLC Citation

KNIGHT & ELLINGTON [2018] FamCA 892

Most Recent Citation

Cole & Ingram [2022] FedCFamC2F 285

Cases citing this decision · 2 of 2 shown

Cole & Ingram
[2022] FedCFamC2F 285 Para 37

…the father’s written outline of submissions, counsel for the mother suggested that the reasoning of his Honour Justice Tree in Knight and Ellington [2018] FamCA 892 was not instructive to this case. The delay was far greater in the matter before his Honour. The mother had “ reasonably waited before filing the appli…
Ellington and Knight
[2020] FamCA 135 Para 3

…’s claim, or in the alternative security for costs. I dismissed that application on 5 November 2018 for reasons then published ( Knight & Ellington [2018] FamCA 892).…

View all 2 citing cases →

Cases cited in this decision · 11 of 11 shown

Lan and Hao
[2015] FamCA 1149 Para 2

…In Lan & Hao [2015] FamCA 1149, Stevenson J was critical of a party waiting “almost” twelve months before he filed an application for security for costs. Her Honour noted that there was little explanation for the delay; here there is no explanation for the delay. Whilst each case will depend upon its own facts, a de…
Gadde & Gadde
[2015] FamCA 617 Para 6

…pon if the evidence is not contradicted by the husband.” He supported that argument by reference to a decision of McClelland J in Gadde & Gadde [2015] FamCA 617 at [30], where his Honour said (footnotes omitted): Caution is required before making findings on the basis of uncontested evidence. I note, however, that…
FINCH & FINCH
[2013] FamCA 567 Para 10

…Counsel for the wife further referred to two decision of Hogan J, being Finch & Finch [2013] FamCA 567 at [13], and Dunnett & Dunnett [2013] FamCA 529 at [24]. True it is that there her Honour was dealing with applications for summary dismissal, and did refer to both Boston Commercial Services and Ricci & Jones , h…
Dunnett and Dunnett
[2013] FamCA 529 Para 10

…Counsel for the wife further referred to two decision of Hogan J, being Finch & Finch [2013] FamCA 567 at [13], and Dunnett & Dunnett [2013] FamCA 529 at [24]. True it is that there her Honour was dealing with applications for summary dismissal, and did refer to both Boston Commercial Services and Ricci & Jones , h…
Ricci & Jones
[2011] FamCAFC 222 Para 8

…Counsel for the wife further relied upon the Full Court decision of Ricci & Jones [2011] FamCAFC 222 at [52], where the court did indeed refer to Boston Commercial Services . However, even accepting the court was then dealing with an appeal relating to summary dismissal, what their Honours said at [52] bears repeatin…
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd
[2006] FCA 1352 Para 6

…submissions, counsel for the wife relied upon observations of Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352 at [43] which, he said, were authority for the proposition that the wife’s evidence “can be relied upon if the evidence is not contradicted by the hu…
Pelerman v Pelerman
[2000] FamCA 881 Para 2

…In Pelerman [2000] FamCA 881, (2000) FLC 93-037 at [46], the Full Court said in relation to the test for summary dismissal as follows: The gravamen of the Appeal is that the trial Judge erred in the exercise of the discretionary power to summarily dismiss the Application. It is well established that the following p…
Munnings v Australian Government Solicitor
[1994] HCA 12 Para 4

…clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action ( Munnings v Australian Government Solicitor (1994) 68 ALJR 169 at 171f, per Dawson J) or in advancing a claim that is clearly frivolous or vexatious; ( Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91.)…
Dey v Victorian Railways Commissioners
[1949] HCA 1 Para 4

…1994) 68 ALJR 169 at 171f, per Dawson J) or in advancing a claim that is clearly frivolous or vexatious; ( Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 91.) 21. Regard should also be had to paragraph 6.31 of the judgment in Bigg v Suzi where the Full Court referred to the fact that the wife, who was t…
Lindon v Commonwealth (No 2)
[1996] HCA 14 Para 4

…al put forward by the respondent (to that application) is to be found in the passage from the judgment of Kirby J in Lindon v The Commonwealth (No 2) (1996) 70 ALJR 541 at 544-545 (which was quoted by the Full Court in its judgment in Bigg v Suzi) where his Honour said: …2. To secure such relief, the party seeking mu…
Their Honours then set out a number of matters, which were later helpfully summarised by Mullane J in Richards and Duff
[2001] FAMCA 177 Para 4

…Their Honours then set out a number of matters, which were later helpfully summarised by Mullane J in Richards and Duff [2001] FamCA 177 at [19] as follows: (a)The means of the respondent to the application to satisfy an order for costs if he or she is unsuccessful. (b)The prospects of the respondent to the applica…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
117, 79A 3 mentions
Family Law Rules 2004 (Cth)
10.12 2 mentions