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
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:
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 Act1976 (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.
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…
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.
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Details
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.