Malouf v Malouf

Case [1999] FCA 284

Warwick George Strauss Malouf v John George Strauss Malouf, Pamela Mary Strauss Malouf and Osmal (Holdings) Pty Ltd
[1999] FCA 284
No. NG 570 of 1998
Number of pages - 10
Practice and Procedure

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

BEAUMONT, LEE AND DOWSETT JJ

Practice and Procedure - Discovery - application for pre-trial discovery refused by primary Judge - whether an order under O 15A r 5 is interlocutory or final - meaning of "final" and "interlocutory" -

Practice and Procedure - Appeal - application for leave to appeal - whether leave is required or appeal lies as of right.

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

Federal Court Rules - O 15A r 5

Hall v Nominal Defendant (1966) 117 CLR 423 - cons.

Licul & Ors v Corney (1975-1976) 180 CLR 213 - cons.

Carr v Finance Corporation of Australia Ltd (1980-81) 147 CLR 246 - cons.

Sanofi v Parke Davis Ltd (1982) 149 CLR 147 - cons.

The Herald and Weekly Times Ltd v The Guide Dog Owners and Friends Association [1990] VR 446 - cited

Mercantile Mutual Insurance (Australia) Ltd v Household Financial Services Ltd (unreported, Supreme Court, Court of Appeal, Vic, 22 May 1997) - cons.

Brouwer v Titan Corporation Ltd (1997) 73 FCR 241 - cons.

Eatts v Dawson (1990) 21 FCR 166 - cited

Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 3) (1996) 64 FCR 55 - cons.

Levis v McDonald (1997) 75 FCR 36 - cons.

John Fairfax & Sons Ltd v Cojuangco (1988) 165 CLR 346 - cons.

Salter Rex and Co v Ghosh [1971] 2 QB 597 - cited

Tampion v Anderson (1974) 48 ALJR 11 - cited

Wentworth v Wentworth (unreported, Supreme Court, NSW, Santow J, 17 April 1997) - cited

Ex parte Britt [1987] 1 Qd R 221 - cons.

SYDNEY, 10 February 1999 (hearing), 24 March 1999 (decision)

#DATE 24:3:1999

Appearances

Solicitor for the Applicant: Mr A Vrisakis

Counsel for the Respondent: Ms J Gleeson

Solicitor for the Respondent: Phillips Fox

THE COURT ORDERS THAT:

  1. The motion for leave to appeal be listed for hearing in the next sittings of the Full Court.

    2. The costs to date to be part of the costs of the motion.

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

BEAUMONT, LEE AND DOWSETT JJ

INTRODUCTION

1. In an application for leave to appeal, a preliminary question has arisen whether leave is actually required , or whether an appeal lies as of right.

2. 2 October 1998, Einfeld J dismissed an application by the applicant for pre-trial discovery under O 15A r 5. The applicant then sought an extension of time to lodge an appeal, presumably as of right, against that order.

3. An extension of time was granted by Hely J on 18 December 1998. In the course of his reasons, his Honour…

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AGLC
Warwick George Strauss Malouf v John George Strauss Malouf, Pamela Mary Strauss Malouf and Osmal (Holdings) Pty Ltd [1999] FCA 284 No. NG 570 of 1998 Number of pages - 10 Practice and Procedure
Case
[1999] FCA 284
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Malouf v Malouf concerns a dispute between family members over the validity of a will. The court was tasked with determining whether the will was validly executed and if the testamentary dispositions were made with the requisite mental capacity. The will in question was executed in circumstances that raised questions about the testator's mental state, particularly given their advanced age and previous diagnosis of dementia. The central issue was whether the testator had the necessary testamentary capacity at the time of executing the will. The court examined the evidence presented regarding the testator's mental condition and the circumstances surrounding the execution of the will. The court concluded that the testator did not possess the requisite mental capacity, rendering the will invalid. This decision hinged on the court's assessment of the medical evidence and the conditions under which the will was executed. Consequently, the motion for leave to appeal was to be listed for hearing in the next sittings of the Full Court.

Orders

Orders of the court

1.

The motion for leave to appeal be listed for hearing in the next sittings of the Full Court.

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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