Laramie & Caul - [2018] FCCA 1371

FEDERAL CIRCUIT COURT OF AUSTRALIA

LARAMIE & CAUL

[2018] FCCA 1371

Catchwords:

FAMILY LAW – High Court and Federal Court – Federal Circuit Court – procedure – ending proceedings early – discontinuance – withdrawal of notice of discontinuance –principles.

Legislation:

Federal Circuit Court Rules 2001 (Cth), rr.13.01, 13.02, 16.05
Land Title Act 1994 (Qld)

Cases cited:

BZAGD v Minister for Immigration & Anor [2015] FCCA 3471

BZAGD v Minister for Immigration and Border Protection [2016] FCA 670

BZAGD v Minister for Immigration and Border Protection & Anor [2016] HCASL 226

Maddison v Qualtime Association Inc [2010] FMCA 25

MZZIO v Minister for Immigration & Anor [2014] FCCA 618

SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137

Applicant:

MS LARAMIE

Respondent:

MR CAUL

File Number:

BRC 11357 of 2016

Judgment of:

Judge Jarrett

Hearing date:

23 April 2018

Date of Last Submission:

23 April 2018

Delivered at:

Brisbane

Delivered on:

23 April 2018

REPRESENTATION

Counsel for the Applicant:

Mr Jordan

Solicitors for the Applicant:

Lake Law

The Respondent appeared in person

ORDERS

The application in a case filed on 24 January 2018 is dismissed.
The response to the application in a case filed 17 April 2018 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Laramie & Caul is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 11357 of 2016

MS LARAMIE

Applicant

And

MR CAUL

Respondent

REASONS FOR JUDGMENT

This is an application by Ms Laramie, to withdraw a notice of discontinuance, wrongly described in her application in a case as a notice of continuance, that she filed on 25 August, 2017. She then seeks a range of directions for the further continuation of the proceedings.
In his response, the respondent, Mr Caul, opposes the application and asks for some other orders that arise out of the lodging of a caveat over the title to particular real property. Neither party chose to address me on the principles that are to be applied to the resolution of this application.
Whilst the Federal Circuit Court Rules2001 provide for the filing of a notice of discontinuance, they do not provide for the withdrawal of one. Nor does the rule that permits the Court to interfere with a perfected judgment – r.16.05 – permit the Court to interfere with a discontinuance, it being an act of a party rather than an act of the Court.
There are some authorities that bear on the issue. In SZFOZ v Minister for Immigration and Citizenship [2007] FCA 1137, Ryan J considered the position where an applicant in this Court had discontinued some proceedings but then sought to have the discontinuance withdrawn.
His Honour considered the relevant Rules – r.13.01 and r.13.02 of the then Federal Magistrates Court Rules– and then recorded this:
17. There is nothing in the relevant provisions of the Federal Magistrates Court Rules which empowers the Court to set aside a notice of discontinuance…

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 Laramie & Caul

Details

AGLC: Laramie & Caul [2018] FCCA 1371
Case: [2018] FCCA 1371
Decision Date: 23 April 2018

CaseChat Overview and Summary

In *Laramie & Caul*, heard in the Federal Circuit Court of Australia before Judge Jarrett, the proceedings concerned an application filed on 24 January 2018 and a response filed on 17 April 2018. The core of the dispute revolved around the ability to withdraw a notice of discontinuance and the principles governing the early termination of proceedings.

The court was required to determine whether a party could effectively withdraw a notice of discontinuance previously filed in the proceedings. This involved considering the procedural rules and underlying legal principles that govern the discontinuance of legal actions and the subsequent ability to reinstate or continue those actions.

Judge Jarrett dismissed both the application and the response. The reasoning for this outcome, though not explicitly detailed in the provided text, indicates a final determination that the proceedings, as initiated by the application and the subsequent response, were to be terminated. The dismissal of both filings suggests that the court found no basis to continue the matter, potentially due to the effect of the discontinuance or other procedural considerations.

Orders

Orders of the court

The application in a case filed on 24 January 2018 is dismissed.

The response to the application in a case filed 17 April 2018 is dismissed.

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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