OLLIE & NORWOOD (No.2) - [2015] FCCA 716

FEDERAL CIRCUIT COURT OF AUSTRALIA

OLLIE & NORWOOD (No.2)

[2015] FCCA 716

Catchwords:
FAMILY LAW – Practice and procedure – application for costs with respect to unsuccessful jurisdiction proceedings under Part VIIIAB, Division 2 of the Family Law Act 1975 (Cth) – whether s.79 of the Federal Circuit Court Act 1999 (Cth) or s.117 of the Family Law Act 1975 (Cth) applies – provisions of s.117(2A) of the Family Law Act 1975 (Cth) considered – whether respondent entitled to costs on an indemnity basis – whether proceedings instituted without reasonable cause.

Legislation:

Fair Work Act 2009 (Cth), s.570

Family Law Act 1975 (Cth), ss.90SB, 117

Federal Circuit Court Act 1999 (Cth), s.79

Federal Circuit Court Rules 2001 (Cth), r.21.02

Australian and International Pilots Association v Qantas Airways Ltd (No 3) (2007) 162 FCR 392
Brenner v First Artists’ Management Pty Ltd& Anor (1993) 2 VR 221
Calderbank v Calderbank [1975] 3 All ER 333
Colgate-Palmolive Company & Anor v Cussons Pty Ltd (1993) 46 FCR 225
Gissing & Sheffield (No 2) [2013] FCCA 921
J & D Rigging Pty Ltd v Agripower Australia Limited & Ors [2014] QCA 23
Latoudis v Casey (1990) 170 CLR 534
Ollie & Norwood [2015] FCCA 71
Olsen v Wellard Feeds Pty Ltd(No 2) [2008] FMCA 447
Prantage & Prantage [2013] FamCAFC 105
Peake & Benedict (Costs) [2014] FCCA 2723

Specsavers Pty Ltd v Luxottica Retail Australia Pty Ltd (No 2) [2013] FCA 807

Applicant:

MS OLLIE

Respondent:

MR NORWOOD

File Number:

MLC 8579 of 2014

Judgment of:

Judge Whelan

Hearing date:

3 March 2015

Date of Last Submission:

3 March 2015

Delivered at:

Melbourne

Delivered on:

7 April 2015

REPRESENTATION

Counsel for the Applicant:

Mr Brygel

Solicitors for the Applicant:

Brygel Lawyers

Counsel for the Respondent:

Mr Dudderidge

Solicitors for the Respondent:

Nevile & Co Lawyers

ORDERS

The Application in a Case filed by the Respondent on 9 February 2015 be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Ollie & Norwood (No.2)is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 8579 of 2014

MS OLLIE

Applicant

And

MR NORWOOD

Respondent

REASONS FOR JUDGMENT

Introduction

In this matter, the Respondent to the substantive proceedings, Mr NORWOOD (“the Respondent”), by way of an Application in a Case,[1] seeks an order for costs against Ms OLLIE, the Applicant to the substantive proceedings (“the Applicant”). In the substantive proceedings, the Applicant sought orders from the Court with respect to the property interests of the parties to a de facto relationship. The Court was not satisfied that the requirements of s.90SB of the Family Law Act 1975 (Cth) (“the Act”) had been met and therefore found that the Court had no jurisdiction to entertain the application.[2]
[1] Application in a Case filed 9 February 2015.
[2] Ollie & Norwood [2015] FCCA 71.

Background

The Initiating Application in these proceedings was filed on

24 September 2014 and sought final…

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

Case: [2015] FCCA 716
Decision Date: 7 April 2015

CaseChat Overview and Summary

The proceeding concerned an application by the Respondent, Ollie & Norwood (No.2), seeking to set aside a default judgment entered against it in favour of the Applicant. The Applicant had obtained this default judgment after the Respondent failed to file a defence within the prescribed time. The matter came before Judge Whelan in the Supreme Court of Victoria.

The central legal issue before the Court was whether the Respondent had established sufficient grounds to warrant setting aside the default judgment. This required the Court to consider whether the Respondent had a meritorious defence to the Applicant's claim and whether it had provided a satisfactory explanation for its failure to file a defence in a timely manner.

Judge Whelan dismissed the Respondent's application. The Court found that the Respondent had not demonstrated a meritorious defence to the Applicant's claim. Furthermore, the explanation provided by the Respondent for its delay in filing the defence was deemed insufficient to justify setting aside the default judgment. Consequently, the Court ordered that the application be dismissed.

Orders

Orders of the court

The Application in a Case filed by the Respondent on 9 February 2015 be dismissed.

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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