FAMILY COURT OF AUSTRALIA
| NOLL & NOLL AND ANOR | [2013] FamCAFC 24 |
FAMILY LAW – APPEAL – ACCRUED JURISDICTION – Where the trial Judge refused the husband’s application for the court to exercise accrued jurisdiction to determine the husband’s cross-claim for damages against the wife’s solicitors at the same time as it determined the wife’s claim against the husband relating to a financial agreement between the husband and the wife – Where the Full Court confirmed that in order to attract accrued jurisdiction a non-federal claim must arise out of the same substratum of facts as the federal claim and also form a single justiciable controversy – Where the Full Court confirmed that once accrued jurisdiction is attracted there is, as a general rule, no discretion not to exercise it - Where there was not enough material before the Full Court to determine whether the entire factual basis for the husband’s cross-claim for damages arose out of the same substratum of facts that gave rise to the proceedings between the husband and the wife – Where the Full Court found that, prima facie, the determination of the federal claim did not require the determination of the claim for damages sought to be attached – Where the claim for damages might not arise until the federal proceedings are concluded - leave to appeal granted – appeal dismissed - orders made for submissions as to costs.
| Fair Trading Act 1999 (Vic) Family Law Act 1975 (Cth) Family Law Amendment Act 2000 (Cth) |
| ASIC v Edensor Nominees Pty Ltd (2001) 204 CLR 559 Bergman & Bergman (2009) FLC 93-395 Bishop & Bishop (2003) FLC 93-144; (2003) 30 Fam LR 108 Fencott v Muller (1983) 152 CLR 570 Houghton v Arms (2006) 225 CLR 553 Philip Morris Inc v Adam P. Brown Male Fashions Pty Ltd (1981) 148 CLR 457 Ruane & Bachman-Ruane & Ors [2012] FamCA 369 Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261 Wade-Ferrell & Wade-Ferrell (2001) FLC 93-069; (2001) 27 Fam LR 484 Re Wakim; Ex parte McNally (1999) 198 CLR 511 Warby & Warby (2001) FLC 93-091; (2001) 28 Fam LR 443 |
| APPELLANT: | Mr Noll |
| FIRST RESPONDENT: | Ms Noll |
| SECOND RESPONDENT | Law Firm A |
| FILE NUMBER: | MLC | 10264 | of | 2010 |
| APPEAL NUMBER: | SOA | 83 | of | 2011 |
| DATE DELIVERED: | 28 February 2013 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bryant CJ, Finn and Strickland JJ |
| HEARING DATE: | 7 March 2012 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 11 November 2011 |
| LOWER COURT MNC: | [2011] FamCA 872 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Bartfeld QC Mr Dinelli Ms Vohra |
| SOLICITOR FOR THE APPELLANT: | Taussig Cherrie Fildes |
| COUNSEL FOR THE RESPONDENT: | Mr Geddes QC Mr Strum |
| SOLICITOR FOR THE RESPONDENT: | Kenna Teasdale Lawyers |
| COUNSEL AND SOLICITOR FOR THE | |
| SECOND RESPONDENT: | Appearance Excused |
Orders
Leave to appeal the orders of the Honourable Justice Le Poer Trench made on 11 November 2011 be granted.
The appeal be dismissed.
(a) Within 28 days…
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- NOLL & NOLL AND ANOR [2013] FamCAFC 24
- Case
- [2013] FamCAFC 24
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CaseChat Overview and Summary
The legal issues that the court was required to address included whether the primary judge's decision was in error, both in terms of the application of the law and the factual findings made. The applicants argued that the lower court had not properly considered certain evidence or had misapplied legal principles in reaching its conclusions. The court needed to examine the grounds of appeal to determine if they had merit and whether the appeal should proceed.
The court, in its reasoning, found that the primary judge's decision was not in error. It held that the lower court had correctly applied the relevant legal principles and had made appropriate findings based on the evidence presented. The court also noted that the applicants had not demonstrated that the primary judge had misapplied the law or made any significant factual errors. Consequently, the appeal was dismissed, and the orders of the primary judge were upheld. The court further directed that the parties could file written submissions regarding any application for costs related to the appeal within the specified timeframes.
Orders
Orders of the court
1.
Leave to appeal the orders of the Honourable Justice Le Poer Trench made on 11 November 2011 be granted.
2.
The appeal be dismissed.
3.
(a) Within 28 days of the date hereof each party be at liberty to file and serve any written submissions in relation to any application for costs in relation to the appeal against the orders of the Honourable Justice Le Poer Trench of 11 November 2011.
(b) Each party have a further 28 days in which to file and serve any written submissions in answer to any submissions filed by the other party.
(c) Each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.
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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