NOLL & NOLL
[2011] FamCAFC 247
•13 December 2011
FAMILY COURT OF AUSTRALIA
| NOLL & NOLL | [2011] FamCAFC 247 |
| FAMILY LAW – APPEAL – Where trial judge dismissed husband’s application for an adjournment of final property hearing pending the hearing and determination of an earlier filed appeal – Where husband’s earlier appeal would be rendered nugatory if adjournment not granted – Where trial judge failed to consider prejudice to husband – Where trial judge failed to weigh prejudice to husband against prejudice to wife – Re-exercise of discretion – Appeal allowed – Orders of trial judge set aside. FAMILY LAW – APPEAL – Leave to appeal – Leave granted. |
| APPELLANT: | Mr Noll |
| RESPONDENT: | Mr Noll |
| FILE NUMBER: | MLC | 10264 | of | 2010 |
| APPEAL NUMBER: | SOA | 87 | of | 2011 |
| DATE DELIVERED: | 13 December 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bryant CJ, Finn & Strickland JJ |
| HEARING DATE: | 13 December 2011 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 9 December 2011 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Bartfeld QC |
| SOLICITOR FOR THE APPELLANT: | Taussig Cherrie Files |
| COUNSEL FOR THE RESPONDENT: | Mr Geddes QC |
| SOLICITOR FOR THE RESPONDENT: | Kenna Teasdale Lawyers |
Orders
The Appellant is granted leave to appeal the orders of the Honourable Justice Le Poer Trench made on 9 December 2011.
The appeal be allowed.
The orders of the Honourable Justice Le Poer Trench made on 9 December 2011 are set aside.
The hearing before the Honourable Justice Le Poer Trench due to commence on 14 December 2011 be adjourned pending the hearing and determination of appeal number SOA 83 of 2011 filed on 6 December 2011.
The appeal be listed for directions before the Appeals Registrar at a date to be fixed with a view to listing the hearing of the appeal on 7 March 2012.
A copy of this order be served on Law Firm A.
Costs be reserved.
IT IS NOTED that publication of this judgment under the pseudonym Noll & Noll is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 87 of 2011
File Number: MLC 10264 of 2010
| Mr Noll |
Appellant
And
| Mrs Noll |
Respondent
REASONS FOR JUDGMENT
Bryant cj
The matter before us concerns the husband’s application for an adjournment of a final property hearing which is due to commence tomorrow before Le Poer Trench J.
On 11 November 2011 his Honour delivered a judgment in which he declined the husband’s application to have the court exercise accrued jurisdiction to determine an action sought to be brought by him against Law Firm A in the hearing listed before his Honour. The husband then appealed that decision by Notice of Appeal dated 6 December 2011.
On 9 December 2011 the husband applied to the Court for an adjournment pending the hearing and determination of the appeal. That matter came before Le Poer Trench J on that same day where his Honour refused the husband’s application and delivered short reasons for judgment.
On 12 December 2011, yesterday, the husband sought leave to appeal the decision refusing the adjournment. It is that matter which comes before us urgently today. The arguments put to his Honour are set out in his Honour’s reasons for judgment and in the transcript of the proceedings of which we have a copy.
In a necessarily short judgment, at paragraphs 7 to 11, his Honour set out the reasons for dismissing the husband’s application.
His Honour accepted, at paragraph 7, that if an adjournment was not granted, the husband potentially would have his appeal rendered nugatory. He considered in determining the application that the significant matters requiring consideration were:
·a possible delay to the proceedings by such an adjournment;
·the impact of the delay on the parties;
·the merit of the husband’s application for leave to appeal;
·the impact on the husband’s right to sue Law Firm A if the adjournment was not granted; and,
·the timing of the application.
In deciding to refuse the application his Honour took into account the delay that would occur before the appeal and a further hearing could take place, and the prejudice that the wife would suffer as a result, having psychologically prepared herself for a hearing only to face an adjournment application on the day of the trial.
His Honour then went on to consider, at paragraph 10, the merits of the case, and while indicating that he thought the appeal was probably less likely to be determined favourably to the husband than more likely, he did not find that the husband’s appeal was completely without merit.
His Honour also considered the impact on the husband’s ability to sue Law Firm A, and determined that it did not affect his right to sue them, the husband being able to initiate proceedings against them in a court of competent jurisdiction.
As a result, his Honour dismissed the application.
Counsel for the husband submitted to us that there were three significant prejudices to the husband that his Honour did not take into account. The first was the prejudice to the husband if he had to litigate in another court if this Court were to find that the solicitors were in some way at fault in relation to the binding financial agreement, and the potential for two courts faced with the same substratum of facts coming to a different conclusion on those facts. Secondly, the prejudice in there not being a simultaneous outcome and having to go to another court and, thirdly, the fact that the wife would not be a party to the proceedings if there was litigation in another court.
The issues of prejudice which were identified by counsel for the husband seemed to us not to have been given any weight by his Honour or, at least, his Honour did not seem to have weighed them against the prejudice to the wife which he set out particularly at paragraph 9.
It also seems to us, that having accepted that the dismissal of the husband’s application would potentially render the appeal nugatory and later finding that the matter was not without merit, there was then a need for his Honour to satisfy himself why there were matters that favoured the wife in concluding that there should not be an adjournment. In my view, he failed to do so and, coupled with his apparent failure to consider the prejudice to the husband which was raised against the prejudice to the wife, that constitutes an error sufficient to grant leave and allow the appeal.
On a redetermination of the matter, having regard to the matters that I have raised, I would re-exercise the discretion of the Court and allow the adjournment.
FINN J
I agree with the orders proposed by the Chief Justice and with the reasons she has given.
STRICKLAND J
I also agree with the orders proposed by the Chief Justice and the reasons that she has provided.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court delivered on 13 December 2011.
Associate:
Date: 31 January 2012
0
0
0