Pullman & Pullman - [2013] FCCA 31

FEDERAL CIRCUIT COURT OF AUSTRALIA

PULLMAN & PULLMAN

[2013] FCCA 31

Catchwords:
FAMILY LAW – Property – application to set aside property orders made by consent.

PRACTICE & PROCEDURE – Summary dismissal – application for summary dismissal – where Respondent seeks summary dismissal of application – whether the substantive application has a reasonable prospect of success – whether Applicant has an arguable case – application need not be hopeless or bound to fail to have no reasonable prospects of success.

Legislation:
Evidence Act 1995 (Cth) s.131
Family Law Act 1975 (Cth), ss.61C, 62G, 65H, 66L, 75, 79, 79A

Federal Circuit Court of Australia Act 1999 (Cth) s.17A
Federal Circuit Court Rules 2001r.13.10

Cases cited:
Bigg v Suzi (1998) FLC 92-799
Clifton and Stuart (1991) 14 Fam LR 511; FLC 92-194
Ferrall & Anor v Blyton & Ors [2000] FamCA 1442; (2000) 27 Fam LR 178; FLC 93-054
Gavin and Garden [2011] FamCA 190
Gebert & Gebert (1990) 14 Fam LR 62; FLC 92-137; 99 FLR 147
G & T [2003] FamCA 1076; (2004) 32 Fam LR 101; FLC 93-176
Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311; FLC 92-668
Holland and Holland (1982) 8 Fam LR 233; FLC 91-243
Korsky & Bright (No 2) [2007] FamCA 1512; (2007) FLC 93-352; (2008) 38 Fam LR 106
Lindon v Commonwealth of Australia (No 2) [1996] HCA 14; (1996) 136 ALR 251; 70 ALJR 541
Liu and Liu (1984) FLC 91-572
Molier and Van Wyk (1980) 7 Fam LR 18; FLC 90-911
Pelerman v Pelerman [2000] FamCA 881; (2000) FLC 93-037
Public Trustee (as executor of the estate of Gilbert) v Gilbert (1991) 14 Fam LR 573; FLC 92-211
Sandrk and Sandrk (1991) 15 Fam LR 197; FLC 92-260
Simpson and Hamlin (1984) FLC 91-576
Suiker & Suiker (1993) 17 Fam LR 236; FLC 92-436

Applicant:

MR PULLMAN

Respondent:

MS PULLMAN

File Number:

SYC 4920 of 2011

Judgment of:

Judge Scarlett

Hearing date:

5 April 2013

Date of Last Submission:

5 April 2013

Delivered at:

Sydney

Delivered on:

19 April 2013

REPRESENTATION

Counsel for the Applicant:

Mr Givney

Solicitors for the Applicant:

Taylor & Scott

Counsel for the Respondent:

Mr Jackson

Solicitors for the Respondent:

Hughes & Taylor

ORDERS

The Response filed on 3 December 2012 is dismissed.
The Respondent is to file and serve an Amended Response within 21 days.
The Respondent is given leave to file and serve an affidavit setting out the facts upon which she seeks to rely in support of her Amended Response within 21 days.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 4920 of 2011

MR PULLMAN

Applicant

And

MS PULLMAN

Respondent

REASONS FOR JUDGMENT

Application

The substantive application is an Application to set aside property orders made by consent on 5^th December 2011. The Respondent wife has,…

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.

Continue reading Pullman & Pullman

Details

AGLC: Pullman & Pullman [2013] FCCA 31
Case: [2013] FCCA 31
Decision Date: 19 April 2013

CaseChat Overview and Summary

In *Pullman & Pullman*, heard by Judge Scarlett, the applicant sought to set aside property orders previously made by consent. The respondent applied for summary dismissal of this application, arguing that the substantive application lacked a reasonable prospect of success and that the applicant did not have an arguable case.

The central legal issue before the court was whether the respondent's application for summary dismissal should be granted. This required the court to determine if the applicant's substantive application to set aside the consent orders was so lacking in merit that it had no reasonable prospect of success, or alternatively, if the applicant had no arguable case. The court considered the threshold for summary dismissal, noting that an application need not be hopeless or bound to fail to be dismissed summarily.

Judge Scarlett dismissed the respondent's application for summary dismissal. The reasoning indicates that the court found the applicant's substantive application to have an arguable case and a reasonable prospect of success, thus meeting the threshold for proceeding to a full hearing rather than being summarily dismissed.

Consequently, the court ordered that the respondent's Response filed on 3 December 2012 be dismissed. The respondent was granted 21 days to file and serve an Amended Response and was also given leave to file and serve an affidavit detailing the facts upon which she intended to rely in support of her Amended Response within the same timeframe.

Orders

Orders of the court

The Response filed on 3 December 2012 is dismissed.

The Respondent is to file and serve an Amended Response within 21 days.

The Respondent is given leave to file and serve an affidavit setting out the facts upon which she seeks to rely in support of her Amended Response within 21 days.

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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