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Lloyd and Oxbourne and Ors

Lloyd and Oxbourne and Ors

Case [2016] FCCA 2026 10 August 2016

Abuse of Process

Stay of Proceedings

Civil Procedure

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FEDERAL CIRCUIT COURT OF AUSTRALIA

LLOYD & OXBOURNE & ORS

[2016] FCCA 2026

Catchwords:
PRACTICE AND PROCEDURE – Suppression and non-publication application – s.15 Federal Circuit Court of Australia Act 1999 – Part X1A Family Law Act1975 – implied/inherent powers of Court – application dismissed.

Legislation:

Family Law Act 1975, ss.34, 102P, 102PA, 102PC, 102PD, 102PE, 102PF, 102PG, 121
Federal Court of Australia Act 1976, ss.23, 50 (repealed)
Federal Circuit Court of Australia Act 1999, s.15

Cases cited:

Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607
Brown & Brown (No.3) [2007] FamCA 1639
Cardile v LED Builders Pty Ltd (1999) 198 CLR 380
Deputy Commissioner of Taxation v Kliman and Kliman (2002) FLC 93-113
David Syme & Co Ltd v GMH Ltd (1984) 2 NSWLR 294
DJL v The Central Authority (2000) 201 CLR 226
Hogan v Australian Crime Commission [2010] 240 CLR 651
Hogan v Hinch [2011] HCA 4
Jackson v Sterling Industries Ltd (1987) 162 CLR 612
John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465
John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131
John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324
Logwon Pty Ltd V Warringah Shire Council (1993) 33 NSWLR 264
Norton & Landell (Suppression or non-publication order)[2015] FamCA 125
Norton & Locke [2013] FamCAFC 202
Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia (No. 3) (1998) 195 CLR 1
Re Applications by Chief Commissioner of Police (Vic) for Leave to Appeal (2004) 9 VR 275
Scott v Scott [1913] AC 417
Stanford v DePuy International Ltd [2013] FCA 1304
Vitzdamm-Jones v Vitzdamm-Jones 6 FamLR 609
Warby (2002) FLC 93-091

Applicant:

DAVID JOHN LLOYD

First Respondent:

MR OXBOURNE

Second Respondent:

MS EWANS

Third Respondent:

MS ROSE

File Number:

SYC 4979 of 2016

Judgment of:

Judge Sexton

Date of Last Submission:

1 April 2016

Delivered at:

Sydney

Delivered on:

10 August 2016

REPRESENTATION

Counsel for the Applicant:

Mr M. Kearney SC

Solicitors for the Applicant:

Newnhams Solicitors

Solicitors for the First Respondent:

Newnhams Solicitors

Solicitors for the Second and Third Respondent:

Mark MacDiarmid

Solicitors for the Independent Children’s Lawyer:

Legal Aid NSW

THE COURT ORDERS THAT:

The Application in a Case filed on 25 August 2015 be dismissed.

IT IS NOTED that this Judgment and the Judgment in proceedings SYC1820 of 2014 will not be published prior to the expiration of the appeal period.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 4979 of 2016

DAVID JOHN LLOYD

Applicant

And

MR OXBOURNE

First Respondent

And

MS EWANS

Second Respondent

And

MS ROSE

Third Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings concern an Application in a Case filed on 25 August 2015 by David John Lloyd SC who appeared…

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 Lloyd and Oxbourne and Ors

Details

AGLC: Lloyd and Oxbourne and Ors [2016] FCCA 2026
Case: [2016] FCCA 2026
Decision Date: 10 August 2016

CaseChat Overview and Summary

In *Lloyd and Oxbourne and Ors*, heard by Judge Sexton, the applicant, Lloyd, sought to bring proceedings against the respondents, Oxbourne and others. The precise nature of the dispute is not detailed, but the application concerned proceedings initiated by Lloyd on 25 August 2015.

The central legal issue before the court was whether the application filed by Lloyd on 25 August 2015 should be permitted to proceed. This required the court to consider the merits of the application and any relevant procedural or substantive grounds for its dismissal.

Judge Sexton determined that the application should be dismissed. The reasoning behind this decision is not elaborated upon in the provided text, but the outcome indicates that the court found sufficient grounds to refuse the applicant's request to bring the proceedings.

Consequently, the court ordered that the Application in a Case filed on 25 August 2015 be dismissed.

Orders

Orders of the court

The Application in a Case filed on 25 August 2015 be dismissed.

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

Lloyd and Oxbourne and Ors [2016] FCCA 2026

Most Recent Citation

Fair Work Ombudsman v NSW Motel Management Services Pty Ltd & Ors (No.2) [2017] FCCA 2759

Cases citing this decision · 1 of 1 shown

Fair Work Ombudsman v NSW Motel Management Services Pty Ltd & Ors (No.2)
[2017] FCCA 2759 Para 1

…milar order being made in respect of the four employees by reason of the Filipino law recited above at 43.” [52] Lloyd & Oxbourne & Ors [2016] FCCA 2026 [25] [53] XYZ v State of Victoria & Anor [2016] VSC 339 [18-20] and the authorities there cited. [54] Affidavit of Sally Stonier dated 11 August 2017 [3-5, 9]…

View all 1 citing cases →

Cases cited in this decision · 17 of 17 shown

Oxbourne & Ewans
[2015] FCCA 2127 Para 2

…ers as follows: (1)Order that the reasons for judgment of Judge Sexton on 7 August 2015 in proceedings numbered SYC 1820 of 2014 and bearing citation [2015] FCCA 2127 [the judgment] not be published by the Judgments Publications Officer (or such other office or entity responsible for the publication of judgments of…
Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1)
[2015] FCA 607 Para 1

…judice to the proper administration of justice. In Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607 Foster J, after noting that the threshold which a suppression order must satisfy is high, observed that “mere embarrassment, inconvenience, annoyance or unreasonable or gr…
NORTON & LANDELL (SUPPRESSION OR NON-PUBLICATION ORDERS)
[2015] FamCA 125 Para 1

…34 of Family Law Council Annual Report 1980 to 1981 [34] Tree J in Norton & Landell (Suppression or non-publication order) [2015] FamCA 125 applied section 102PE to legal representatives…
Norton & Locke
[2013] FamCAFC 202 Para 2

…owers”, they must be powers within jurisdiction and referable to a power which the court expressly has. [43] Norton & Locke [2013] FamCAFC 202 at paragraph 33…
Stanford v DePuy International Ltd
[2013] FCA 1304 Para 3

…f necessity and it must be applied with strictness when the power sought to be implied conflicts with the principle of open justice. [48] [2013] FCA 1304 [49] Equivalent to section 102PD in the Family Law Act 1975 [50] [2004] NSWCA 324…
Hogan v Hinch
[2011] HCA 4 Para 2

…are open, so as to minimise its intrusion upon that principle. [40] Section 102PD of the Family Law Act 1975 [41] At paragraph 27 of Hogan v Hinch [2011] HCA 4…
Hogan v Australian Crime Commission
[2010] HCA 21 Para 2

…t of Australia Act 1976 (Cth) (now repealed), in similar terms to section 102PF(1)(a) of the Family Law Act. The High Court[36] says: [35] [2010] 240 CLR 651 [36] Hogan v Australian Crime Commission at 664 As it appears in s 50, “necessary” is a strong word. Hence the point made by Bowen CJ in Australian Broad…
Brown and Brown (No. 3)
[2007] FamCA 1639 Para 2

…dings, not brought back together… [14] At paragraphs 27 and 28 of written submissions filed on 8 December 2015 [15] [2007] FamCA 1639 [16] At page 35 of Annexure A to Applicant’s affidavit sworn on 25 August 2015 [17] At page 35 of Annexure A to Applicant’s affidavit sworn on 25 August 2015…
John Fairfax Publications Pty Ltd v Ryde Local Court
[2005] NSWCA 101 Para 2

…lso comments by Mahoney JA in John Fairfax Group v Local Court of NSW (1991) 26 NSWLR 131 at 163; John Fairfax & Sons v Police Tribunal (1986) 5 NSWLR 465 at 471 per Mahoney JA; David Syme & Co Ltd v GMH Ltd (1984) 2 NSWLR 294 at 300 to 301. [47] Scott v Scott [1913] AC 417 at 437…
John Fairfax Publications Pty Ltd v District Court of New South Wales
[2004] NSWCA 324 Para 3

…plied conflicts with the principle of open justice. [48] [2013] FCA 1304 [49] Equivalent to section 102PD in the Family Law Act 1975 [50] [2004] NSWCA 324…
Re Applications by Chief Commissioner of Police (Vic) for leave to appeal
[2004] VSCA 3

…rations No.2 Pty Ltd v Maritime Union of Australia (No. 3) (1998) 195 CLR 1 Re Applications by Chief Commissioner of Police (Vic) for Leave to Appeal (2004) 9 VR 275 Scott v Scott [1913] AC 417 Stanford v DePuy International Ltd [2013] FCA 1304 Vitzdamm-Jones v Vitzdamm-Jones 6 FamLR 609 Warby (2002) FLC 93-091…
DJL v Central Authority
[2000] HCA 17 Para 3

…In DJL v The Central Authority (2000) 201 CLR 226, the High Court examined the powers of the Family Court of Australia, a superior court of record created by statute. The majority (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said that as the Family Court is “not a common law Court”, it is “unable to draw upon t…
Cardile v LED Builders Pty Ltd
[1999] HCA 18 Para 1

…ions filed on 8 December 2015 [20] Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia (No. 3) (1998) 195 CLR 1; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; Warby (2002) FLC 93-091; Deputy Commissioner of Taxation v Kliman and Kliman (2002) FLC 93-113 [21] Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 re…
Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia
[1998] HCA 31 Para 1

…raph 11 of submissions filed on 8 December 2015 [20] Patrick Stevedores Operations No.2 Pty Ltd v Maritime Union of Australia (No. 3) (1998) 195 CLR 1; Cardile v LED Builders Pty Ltd (1999) 198 CLR 380; Warby (2002) FLC 93-091; Deputy Commissioner of Taxation v Kliman and Kliman (2002) FLC 93-113 [21] Cardile v LED…
Jackson v Sterling Industries Ltd
[1987] HCA 23 Para 1

…an (2002) FLC 93-113 [21] Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 referring to Deane J in Jackson v Sterling Industries Ltd (1987) 162 CLR 612 at 623…
[1913] AC 417
[1913] AC 417 Para 2

…e Tribunal (1986) 5 NSWLR 465 at 471 per Mahoney JA; David Syme & Co Ltd v GMH Ltd (1984) 2 NSWLR 294 at 300 to 301. [47] Scott v Scott [1913] AC 417 at 437…
Pty Ltd v Maritime Union of Australia
1 Ch App 244 Para 1

…Mr Kearney submits that section 15 of the FCC Act (closely equivalent to s.23 of the Federal Court of Australia Act 1976 (hereinafter referred to as the “ Federal Court Act” ) and s.34 of the Family Law Act 1975 ) “ provides the Court with the power to make Orders of such kind as the Court thinks ap…

Legislation cited in this decision · 4

Family Law Act 1975 (Cth)
102P, 102PA, 102PC, 102PD, 102PE, 102PF,... 11 mentions (from Para 2)
Federal Court of Australia Act 1976 (Cth)
23, 50 3 mentions (from Para 1)
Federal Circuit Court of Australia Act 1999 (Cth)
15 2 mentions (from Para 5)
Federal Magistrates Act 1999 (Cth)
1 mention (from Para 4)