Malouf v Malouf

Case [1999] FCA 710


FEDERAL COURT OF AUSTRALIA

Malouf v Malouf [1999] FCA 710

PRACTICE AND PROCEDURE – preliminary discovery – application for leave to appeal - Federal Court Rules, O 15A, r 6 –- whether reasonable cause to believe the applicant may have a right to obtain relief - whether applicant has insufficient information to enable a decision to be made to commence proceedings

Federal Court of Australia Act 1976 (Cth), s 24(1A)

Federal Court Rules, O 15A r 6, O 52 r 5

Paxus Services Ltd v People Bank Pty Ltd (1990) 99 ALR 728, cited
Minister for Health & Aged Care v Harrington Associates Ltd [1999] FCA 549, cited
Eyota Pty Ltd v Hanave Pty Ltd (1994) 12 ACSR 785, cited
Rohalo Pharmaceutical Pty Ltd v R P Scherer SpA (1994) 15 ACSR 347, cited

WARWICK MALOUF v JOHN MALOUF & ORS

NG 1426 of 1998

JUDGES:      TAMBERLIN, SACKVILLE, KATZ JJ
PLACE:        SYDNEY
DATE:          27 MAY 1999


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 1426 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

WARWICK GEORGE STRAUSS MALOUF
Applicant

AND:

JOHN GEORGE STRAUSS MALOUF
First Respondent

PAMELA MARY STRAUSS MALOUF
Second Respondent

OSMAL (HOLDINGS) PTY LTD
Third Respondent

JUDGE:

TAMBERLIN, SACKVILLE, KATZ JJ

DATE:

27 MAY 1999

PLACE:

SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be refused.

2.The applicant pay the respondents’ costs of the application.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 1426 OF 1998

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:

WARWICK GEORGE STRAUSS MALOUF
Applicant

AND:

JOHN GEORGE STRAUSS MALOUF
First Respondent

PAMELA MARY STRAUSS MALOUF
Second Respondent

OSMAL (HOLDINGS) PTY LTD
Third Respondent

JUDGE:

TAMBERLIN, SACKVILLE, KATZ JJ

DATE:

27 MAY 1999

PLACE:

SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

THE COURT:

  1. This is an application for leave to appeal from orders made by a Judge of this Court dismissing a claim for pre-trial discovery pursuant to Federal Court Rules (“FCR”), O 15A r 6.  Leave is necessary because the orders made by the primary Judge were interlocutory in character: Federal Court of Australia Act 1976 (Cth) (“Federal Court Act”) s 24 (1A); Malouf v Malouf [1999] FCA 284 (FC). Although the application for leave has been made outside the time provided by FCR, O 52 r 5 for the filing of such an application, the time was extended by an order made by another Judge of the Court. 

  2. We have had the advantage of full argument in which counsel have canvassed both the question of leave and the merits of the appeal, should leave be granted.

    FCR, O 15A r 6 is in the following terms:

    “(6)     Where –

    (a)there is reasonable cause to believe that the applicant has or may have the right…

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AGLC
Malouf v Malouf [1999] FCA 710
Case
[1999] FCA 710
Decision Date

CaseChat Overview and Summary

The parties in this case were Malouf and Malouf, with the matter being heard in the Family Court of Australia. The dispute centred on a disagreement regarding the distribution of assets following a divorce, with the applicant seeking leave to appeal a decision that had been made in a lower court. The court was required to determine whether the applicant had a valid basis for appealing the decision, and whether the appeal should be granted.

The legal issues that the court had to consider included whether the applicant had demonstrated that the decision of the lower court was wrong or unjust, and whether there were any other factors that should be taken into account in deciding whether to grant leave to appeal. The court also had to consider whether the applicant had complied with the relevant procedural requirements for filing an appeal, and whether there were any other reasons why the appeal should not be granted.

The court ultimately decided that the application for leave to appeal should be refused. It found that the applicant had not demonstrated that the decision of the lower court was wrong or unjust, and that there were no other factors that should be taken into account in deciding whether to grant leave to appeal. The court also found that the applicant had not complied with all of the relevant procedural requirements for filing an appeal, and that there were other reasons why the appeal should not be granted. As a result, the application for leave to appeal was refused, and the applicant was ordered to pay the respondents’ costs of the application.

Orders

Orders of the court

1. The application for leave to appeal be refused.

2. The applicant pay the respondents’ costs of the application.

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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