Love v Love - [1989] HCATrans 309

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IN THE HIGH COURT OF AUSTRALIA
Office of the Registry

Sydney No S87 of 1989

B e t w e e n -

GEORGE CLIFTON LOVE

Applicant

and
GAIL MARIE LOVE

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J
GAUDRON J

Love
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 8 DECEMBER 1989, AT 2.31 PM
Copyright in the High Court of Australia

S1Tl3/l/PLC 1 8/12/89

MR A.J. SULLIVAN: May it please Your Honours, I appear with
my learned friend, MR B.A.M. CONNELL, for the applicant.
(instructed by Verekers)

MR D.P.F. OFFICER, QC: May it please Your Honours, I appear
with my learned friend, MR R.J. POWELL, for the

respondent. (instructed by Fred A. & John F. Newnham)

MASON CJ: Yes, Mr Sullivan.

MR SULLIVAN: Your Honours, I have taken the liberty of
preparing a written outline of submission because I
have to say that the approach which I will be seeking
to put before Your Honours today differs somewhat from

the affidavit which has been put on. In particular,
I do not seek to press before this Court what I may
call the jurisdictional aspect, namely the ability of
the Family Court to have jurisdiction in a situation

where service has not been effected. I wonder whether
it might be a more proper use of the Court's time
if the Court was just to briefly read the submissions - the
outline I have put and then if I spoke briefly to them,
if that is a convenient course?

MASON CJ: Well, it certainly would seem to be, Mr Sullivan,
if you are not relying on the jurisdictional argument.

MR SULLIVAN: Yes, Your Honour.

MASON CJ:
But I should repeat what I have said on previous
occasions, that is, that the Court does go to some
trouble to read the materials that are filed
with a view to forming some appreciation of the
case before it comes on for oral argument and we
have stressed also on previous occasions that if there
is to be a change in the basis on which the case is
to be presented, the materials relevant to that change
should be placed in the hands of the Court before the
matter is listed for hearing. It means that, otherwise,
the Court's time is wasted and the Court is not in a
position to, as it were, appreciate the oral argument

when it is presented.
Now, it may be that the responsibility in this

case does not lie with you at all but necessarily it lies with those who are advising the applicant.

MR SULLIVAN: Your Honour, both - I should say what I would
seek to put to Your Honours this afternoon has been
covered in the affidavit but what I am doing is
abandoning part of the affidavit rather than anything
else and I did that, with respect, to save the Court's
time rather than to increase the Court's time.
Your Honours, the submission which I make is

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 Love v Love

Details

AGLC: Love v Love [1989] HCATrans 309
Case: [1989] HCATrans 309
Decision Date

CaseChat Overview and Summary

The parties in this matter were the applicant and the respondent, with the applicant seeking special leave to appeal to the High Court of Australia. The dispute concerned an appeal from a decision of the Full Court of the Family Court of Australia, which had intervened in the exercise of a trial judge's discretion. The applicant's counsel indicated that they would not be pressing the jurisdictional aspect of the case, specifically concerning the Family Court's ability to exercise jurisdiction where service had not been effected.

The primary legal issue before the High Court was whether the Full Court of the Family Court had erred in intervening with and interfering with the discretion exercised by the trial judge. The applicant argued that the Full Court's intervention demonstrated an error, particularly in relation to the significant 3½-year period of delay that had been a matter of importance to the trial judge. The applicant's submissions focused on the interpretation of section 79(8) of the relevant Act, which deals with the continuation of proceedings upon the death of a party.

The applicant contended that the Full Court had seized upon the wording of section 79(8), which permits applications to be made by or against the legal personal representative of a deceased party. While section 79(8) provides the foundation for the continuation of proceedings by a legal personal representative, the applicant argued that this section was not the source of the discretion itself, suggesting the discretion arose from another express power within the Act. The applicant's core argument was that the Full Court's intervention constituted a miscarriage of justice.

Orders