Latorre v Maddock - [2012] FMCAfam 97

FEDERAL MAGISTRATES COURT OF AUSTRALIA

LATORRE & MADDOCK

[2012] FMCAfam 97

FAMILY LAW – Property Adjustment and Spousal Maintenance – application for injunction – application for order to set aside instrument – binding death nomination under superannuation trust deed – cross application to strike out summarily – no reasonable prospect of success.

Family Law Act 1975, s.106B
Federal Court of Australia Act 1976, s.31A
Federal Magistrates Act 1999, s.17A
Federal Magistrates Courts Rules 2001, rule 13.10(a)

Spencer v Commonwealth of Australia (2010) 241 CLR 118
George v Fletcher (Trustee) [2010] FCAFC 53

Applicant:

MS LATORRE

Respondent:

MR MADDOCK

File Number:

BRC 2210 of 2011

Judgment of:

Jarrett FM

Hearing date:

30 January, 2012

Date of Last Submission:

30 January, 2012

Delivered at:

Brisbane

Delivered on:

6 February, 2012

REPRESENTATION

Counsel for the Applicant:

Mr B Thiele

Solicitors for the Applicant:

Baker O'Brien & Toll

Solicitor for the First Respondent:

Mr Zufic

Solicitors for the First Respondent:

Client Care Solicitors

Counsel for the Second Respondent:

Ms C Carew

Solicitors for the Second Respondent:

QBM Lawyers

ORDERS

Orders 2 and 3 of the application in a case filed on 8 December, 2012 are dismissed;
Otherwise the application in a case filed on 8 December, 2012 is adjourned for directions to 9.30am on 1 March, 2012.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRC 2210 of 2011

MS LATORRE

Applicant

And

MR MADDOCK

Respondent

REASONS FOR JUDGMENT

By an application filed on 20 April, 2011 Ms Latorre applies for property adjustment and spousal maintenance orders against Mr Maddock. Ms Latorre and Mr Maddock were in a de facto relationship between February, 2005 and September, 2008.
On 10 October, 2011 I made orders for interim spouse maintenance whereby Mr Maddock was required to pay a periodic sum to Ms Latorre. I made some other procedural orders. Soon after the making of the orders for interim spouse maintenance, on 14 October, 2011 Mr Maddock passed away.
At the time of his death Mr Maddock held a superannuation policy with AMP Superannuation Limited. Pursuant to that policy, Mr Maddock was able to direct the payment of a death benefit to a nominated beneficiary. Prior to his death, Mr Maddock nominated a beneficiary to receive the death benefit payable under his superannuation policy in the event of his death. The nominated beneficiary is Ms G.
By an application in a case filed on 8 December, 2011 Ms Latorre seeks orders that:
“2. Pursuant to s 90TA and s 90SS of the Family Law Act 1975, until further order (or with the express written consent of the applicant), AMP Superannuation Limited … be restrained and an injunction be granted, restraining AMP from making any payment to any person out of the proceeds of the deceased respondent’s interest in the AMP Flexible Lifetime Superannuation Plan No. (omitted).
3.…

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 Latorre v Maddock

Details

AGLC: Latorre v Maddock [2012] FMCAfam 97
Case: [2012] FMCAfam 97
Decision Date: 6 February, 2012

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, the case of Latorre v Maddock involved a dispute regarding an application for summary judgment concerning a binding death nomination in a superannuation fund. The applicant, Ms Latorre, sought injunctive relief against AMP and the setting aside of a Binding Nomination that had been made in the AMP Superannuation Savings Trust. The respondent, Mr Maddock, defended the nomination, asserting that it was not subject to the jurisdiction of the Court under the Family Law Act 1975.

The legal issues the court needed to address were whether Ms Latorre's application for injunctive relief had any reasonable prospect of success and if the setting aside of the Binding Nomination would be within the Court's jurisdiction under the Family Law Act 1975. The court examined the statutory provisions regarding summary judgment and the definition of "matrimonial cause" as outlined in the Family Law Act 1975.

The court found that Ms Latorre's application for injunctive relief and the setting aside of the Binding Nomination had no reasonable prospect of success. The court reasoned that the existence of the Binding Nomination would not defeat any anticipated property adjustment order in the pending proceedings as it did not remove any property from the reach of the Court. Furthermore, the court held that the matters concerning the Binding Nomination were not considered "matrimonial causes" under the Family Law Act 1975.

ORDERS:
1. Orders 2 and 3 of the application in the case filed on 8 December 2012 are dismissed.
2. Otherwise, the application in the case filed on 8 December 2012 is adjourned for directions to 9.30am on 1 March 2012.

Orders

Orders of the court

Orders 2 and 3 of the application in a case filed on 8 December, 2012 are dismissed;

Otherwise the application in a case filed on 8 December, 2012 is adjourned for directions to 9.30am on 1 March, 2012.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I observe that the above rule follows s.17A of the Federal Magistrates Act 1999 which is in the same terms as s.31A of the Federal Court of Australia Act 1976. That rule and those sections provide for the Court to give summary judgment in an appropriate case. Relevantly, s.17A of the Federal Magistrates Act 1999 is set out in the following terms:Summary judgment …(2) The Federal Magistrates Court may give judgment for one party against another in relation to the whole or any part of a proceeding if: (a) the first party is defending the proceeding or that part of the proceeding; and (b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding. (3) For the purposes of this section, a defence or a proceeding or part of a proceeding need not be: (a) hopeless; or (b) bound to fail; for it to have no reasonable prospect of success. The approach taken in cases dealing with s.31A of the Federal Court Act 1976 are generally seen as apposite in cases dealing with s.17A of the Federal Magistrates Act 1999: George v Fletcher (Trustee) [2010] FCAFC 53 at [75] and [105]. The words of s.31A mean what they say and there is little point in attempting to formulate other phrases to encapsulate their meaning: Spencer v Commonwealth of Australia (2010) 241 CLR 118, per Hayne, Crennan, Kiefel and Bell JJ at [58] – [59]. The Court must embark upon a “practical judgment…as to whether the applicant has more than a ‘fanciful’ prospect of success”: per French CJ and Gummow J at [25]. What is required by the section is set out by the Hayne, Crennan, Kiefel and Bell JJ as follows at [60]:… The Federal Court may exercise power under s 31A if, and only if, satisfied that there is "no reasonable prospect" of success. Of course, it may readily be accepted that the power to dismiss an action summarily is not to be exercised lightly. But the elucidation of what amounts to "no reasonable prospect" can best proceed in the same way as content has been given, through a succession of decided cases, to other generally expressed statutory phrases, such as the phrase "just and equitable" when it is used to identify a ground for winding up a company. At this point in the development of the understanding of the expression and its application, it is sufficient, but important, to emphasise that the evident legislative purpose revealed by the text of the provision will be defeated if its application is read as confined to cases of a kind which fell within earlier, different, procedural regimes. I am satisfied that Ms Latorre’s application, insofar as she claims injunctive relief against AMP and that the Binding Nomination be set aside, has no reasonable prospects of success. I am satisfied that she has no reasonable prospects because: The existence of the binding death nomination is not likely to defeat any anticipated property adjustment order in these proceedings because it does not remove any of Ms Latorre’s or Mr Maddock’s property from the reach of the Court in the pending property adjustment proceedings. The death benefit payable according to the terms of the AMP Superannuation Savings Trust Deed will be paid in accordance with the terms of the Fund Deed. It might be paid to Ms Latorre if the Binding Nomination is set aside, but:a)whether the Binding Nomination ought to be set aside; andb)in the event that it is, whether Ms Latorre receives a payment from the Trusteesis not a matrimonial cause as defined in s.4 of the Family Law Act 1975.

Ratio Decidendi

Legal Principle Established

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