Malloy and Ors and Stopford Malloy

[2017] FamCAFC 97

FAMILY COURT OF AUSTRALIA

MALLOY AND ORS & STOPFORD MALLOY [2017] FamCAFC 97

FAMILY LAW – APPEAL – Leave to appeal – Whether applications for leave to appeal are to be heard at the same time as the proposed appeal – Both to be heard at the same time.

Family Law Act 1975 (Cth)

APPELLANT: Mr Malloy

FIRST CROSS-APPELLANT: The Malloy Group

SECOND CROSS-APPELLANT: Mr Q Malloy

RESPONDENT: Ms Stopford Malloy

FILE NUMBER: ADC 2595 of 2015

APPEAL NUMBER: SOA 87 of 2016

DATE DELIVERED: 22 February 2017

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Thackray, Strickland & Kent JJ

HEARING DATE: 22 February 2017

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 5 September 2016

LOWER COURT MNC: [2016] FamCA 748

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Whitington QC with Mr Bullock

SOLICITOR FOR THE APPELLANT: Howe Jenkin

COUNSEL FOR THE FIRST AND SECOND CROSS-APPELLANTS: Mr Harris QC with Ms Kari

SOLICITOR FOR FIRST AND SECOND CROSS-APPELLANTS: Barnes Brisley Shaw Lawyers

COUNSEL FOR THE RESPONDENT: Mr Wells QC with Mr McGinn

SOLICITOR FOR THE RESPONDENT: Piper Alderman

Orders

1. Judgment be reserved.

2. The appellant have leave to provide a brief supplementary submission relating to the variation of the stay order made on 5 September 2016, such submission to be filed and served by the close of the Registry on Friday 24 February 2017.

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 Malloy and Ors & Stopford Malloy 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 87 of 2016
File Number: ADC 2595 of 2015

Mr Malloy

Appellant

And

The Malloy Group

First Cross-Appellant

And

Mr Q Malloy

Second Cross-Appellant

And

Ms Stopford Malloy

Respondent

EX TEMPORE REASONS FOR JUDGMENT

THACKRAY J

1. Before the Full Court this morning is an appeal and cross-appeal against orders made by the Chief Justice.  It is common ground that leave to appeal is required.  The issue on which we are asked to rule at the outset is whether we should hear the applications for leave separately from the appeals.

2. At the directions hearing conducted by the Appeals Registrar on 17 November 2016, an order was made in what, in this Court at least, is the usual form, to the effect that subject to any orders of the Full Court, the proposed appeals be argued together with the applications for leave to appeal. 

3. In the respondent’s summary of argument, notice was given of the intention to seek to argue that the applications for leave to appeal should be considered independently of the main argument.  Senior counsel for the respondent has today highlighted the concern that the legislative necessity to obtain leave to appeal may be lost sight of in the event the matters are argued together. 

4. In response it is said there are very weighty matters to be considered in relation to the applications for leave to appeal.  It is said that in developing those matters, which go to the jurisdiction of the Court, it will be necessary to go deep into the arguments pertaining to the merits of the appeal and cross‑appeal.

5. At this point we are not asked to rule on whether leave will be granted.  This is a purely procedural issue relating to the way in which the hearing today should be conducted.  It is, of course, the case that all parties are here assembled with their arguments ready in relation to both issues, which is a relevant consideration when considering the statutory imperative for us to proceed without undue formality and to ensure that proceedings are not protracted.

6. I appreciate that in other appellate courts, many of which are differently constituted to the way this national court is constituted, it is common to follow the procedure urged by senior counsel for the respondent.  There are, of course, many powerful arguments in support of such an approach, but in this Court it has generally been considered, often for reasons of practicality, that such a process does not advance the statutory imperative to which I have referred. 

7. In the event we did conduct the hearing in the way proposed by the respondent, there is a prospect we would spend the best part of today dealing with the issue of leave and then find ourselves unable to conclude the hearing, thereby requiring an adjournment and all the consequential problems of attempting to reassemble a bench at a later date.  A hearing that ought to occupy only one day of this Court’s stretched resources would then require two days.   

8. Whilst recognising the merits in the argument, it is my view that this application should not succeed.  The matter ought to proceed on the basis that the Registrar foreshadowed at the directions hearing.

9. This is the view of the Court.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Strickland & Kent JJ) delivered on 22 February 2017.

Associate:

Date:  26 May 2017