Newall and Scarrow

Case [2017] FCCA 1422


FEDERAL CIRCUIT COURT OF AUSTRALIA

NEWALL & SCARROW [2017] FCCA 1422
Catchwords:
FAMILY LAW – Application for leave to extend time – consideration of principles applicable to exercise of discretion as discussed in Gallo v Dawson (1990) 93 ALR 479 – whether strict application of the rules would cause injustice – whether conduct of the parties relevant – whether the principles of estoppel apply – whether the doctrine of laches is applicable in the circumstances – whether appropriate to exercise discretion in favour of the husband – leave to extend time granted.

Legislation:

Family Law Act 1975, ss.44, 44(3), 44(3)(d), 44(4), 79, 79A, 79(1)(a), 79(2), 79(4), 81

Federal Circuit Court Rules 2001, Rule 24.03

Cases cited:

Gallo v Dawson (1990) 93 ALR 479

Hughes v National Trustees Executors and Agency Co of Australasia Ltd (1978) VR 257
Avery v No 2 Public Service Appeal Board (1973) 2 NZLR 86
Jess v Scott (1986) 12 FCR 187; 70 ALR 185
Hedley v Hedley [2009] FamCAFC 179
Neocleous & Neocleous (1993) FLC 92
Whitford & Whitford (1979) FLC 90-612
McDonald & McDonald (1977) FLC 90-317
Althaus & Althaus (1982) FLC 91-233
Wong v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 242
Port of Melbourne Authority v Anshun Pty Ltd [1981] HCA 45; 147 CLR 589
Macquarie Bank Ltd v National Mutual Life Association of Australia Ltd (1996) 40 NSWLR 543
BC v Minister for Immigration & Multicultural Affairs [2002] FCAFC 221
BC v Minister for Immigration & Multicultural Affairs [2001] FCA 1669
Port of Melbourne Authority v Anshun (No.2) [1981] VicRp 9; [1981] VR 81
Bryant v Commonwealth Bank [1995] FCA 1299; (1995) 57 FCR 287
Yat Tung Investments Co Ltd v Doa Heng Bank Ltd [1975] AC 581
Selen & Selen and Anor [2011] FamCA 310
Crawley v Short [2009] NSWCA 410
Stanford v Stanford [2012] HCA 52
Wirth v Wirth (1956) 98 CLR 228
R v Watson; Ex parte Armstrong [1976] HCA; (1976) 136 CLR 248

Applicant: MR NEWALL
Respondent: MS SCARROW
File Number: CAC 1262 of 2015
Judgment of: Judge Tonkin
Hearing date: 31 May 2017
Date of Last Submission: 31 May 2017
Delivered at: Canberra
Delivered on: 4 July 2017

REPRESENTATION

Solicitors for the Applicant: Canberra Legal Group
Counsel for the Respondent: Mr RJ Clutterbuck
Solicitors for the Respondent: Hill & Rummery

ORDERS

(1)Pursuant to paragraphs 44 (3) (d) and 44 (6) (a) of the Family Law Act the applicant Mr Newall is granted leave out of time in which to file an application for adjustment of property interests under section 79 of the Family Law Act.

(2)The matter is listed for directions before Judge Tonkin on 7 August 2017 at 9.30am.

IT IS NOTED that publication of this judgment under the pseudonym Newall & Scarrow is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CANBERRA

CAC 1262 of 2015

MR NEWALL

Applicant

And

MS SCARROW

Respondent

REASONS FOR JUDGMENT

Introduction

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Newall and Scarrow [2017] FCCA 1422
Case
[2017] FCCA 1422
Decision Date

CaseChat Overview and Summary

In the matter of *Newall and Scarrow*, heard before Judge Tonkin of the Family Court of Australia, the applicant, Mr Newall, sought leave to file an application for adjustment of property interests out of time. The respondent, Ms Scarrow, was presumably opposing this application, though this is not explicitly stated. The core of the dispute concerned Mr Newall's ability to pursue a property settlement under section 79 of the *Family Law Act 1975* (Cth) after the statutory time limit had expired.

The primary legal issue before the Court was whether Mr Newall should be granted leave to file his application for property adjustment out of time, pursuant to paragraphs 44(3)(d) and 44(6)(a) of the *Family Law Act*. This required the Court to consider the circumstances justifying an extension of time for such applications.

Judge Tonkin granted Mr Newall leave to file his application out of time. The Court's reasoning, as indicated by the specific legislative provisions cited, involved an assessment of the factors relevant to granting such an extension under the *Family Law Act*. While the detailed reasons for this decision are not provided, the outcome signifies that the Court was satisfied that the criteria for extending the time limit were met in this instance. The matter was subsequently listed for directions.

Orders

Orders of the court

(1) Pursuant to paragraphs 44 (3) (d) and 44 (6) (a) of the Family Law Act the applicant Mr Newall is granted leave out of time in which to file an application for adjustment of property interests under section 79 of the Family Law Act.

(2) The matter is listed for directions before Judge Tonkin on 7 August 2017 at 9.30am.

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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