Matrimonial Causes—Family Court of Australia—Powers—Dissolution of marriage—Property of parties to marriage—Partnership between husband and wife—Appointment of receiver of partnership assets—Accounts—Family Law Act 1975 (Cth), ss.4 (1) "matrimonial cause" (ca), 8, 31 (1)(a), 33, 34(1), 78, 79 (1), 80, 81, 94. Mandamus—Discretion—Determination by court that it had no jurisdiction to make orders—Order to that effect pronounced by consent of parties—Family Court of Australia—Right of appeal to Full Court.
Decisions
1979, Feb. 20. The following written judgments were delivered:- GIBBS J. The second respondent (to whom I shall refer as "the respondent") and the prosecutrix were husband and wife. Both are medical practitioners. On the 15th April 1976 they entered into articles of partnership in respect of the two medical practices which they conducted at Macquarie Street, Sydney, and at Balmain. Under the articles the respondent and the prosecutrix were to share equally the net profits of the partnership. The partnership commenced on the 1st July 1975 and was to continue until the 30th June 1978 and thereafter at will. Later, differences arose between the spouses and they separated. In February 1978 the respondent applied to the Family Court of Australia for dissolution of the marriage. While this application was pending the prosecutrix made application, on the 8th March 1978, to the Family Court in the following terms:
"1. STARLETTE ANNE BEAUMONT applies for the following declarations: (a) That the Partnership between the Applicant and the Respondent, the terms of which are contained in Articles of Partnership dated 15th April 1976 exists. (b) That the said partnership has not yet been determined. 2. STARLETTE ANNE BEAUMONT applies for the following orders: (a) That Mr. John Edward Walker, Official Liquidator, be appointed Receiver of the said partnership. (b) That the books of account and assets of the said partnership be handed to the Receiver so appointed. (c) That the Receiver prepare partnership accounts. (d) That the Respondent pay the Applicant's costs. (e) That Paul Thomas Cambage Wenham and Thomas Henry Waters be removed as Trustees of the Trust created by Deed dated 2nd February 1976. (f) That the Trustees within 14 days from the Order of the Court prepare Balance Sheets, Profit and Loss Accounts and prepare all books and records of the Trust and that the same be handed over within this time to the new Trustee appointed by the Court."
Paragraphs (e) and (f) of cl. 2, which relate to a trust deed executed on the 2nd February 1976 in favour of the spouses and their children, do not concern us in the present case. When the application of 8th March 1978 came before the Family Court, counsel for the respondent submitted that the Court had no jurisdiction to hear it. No transcript of the proceedings before the Family Court has been included in the papers placed before us, and it does not…
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
AGLC
R v Ross-Jones; Ex parte Beaumont [1979] HCA 5
Case
[1979] HCA 5
Decision Date
CaseChat Overview and Summary
The applicants, R v Ross-Jones and Ex parte Beaumont, sought a writ of prohibition from the High Court of Australia to prevent the respondent, a magistrate, from proceeding with a committal hearing. The dispute concerned the magistrate's jurisdiction to continue the committal hearing for an alleged offence of conspiracy to defraud, given that the applicants had already been committed for trial on a related charge of conspiracy to cheat and defraud.
The central legal issue before the High Court was whether the magistrate had the power to continue the committal hearing for the conspiracy to defraud charge when the applicants had already been committed for trial on the conspiracy to cheat and defraud charge, and whether the two charges constituted the same offence for the purposes of preventing a second committal. The court was required to consider the principles of double jeopardy and the scope of a magistrate's jurisdiction in committal proceedings.
The High Court, in a joint judgment, held that the magistrate did have jurisdiction to continue the committal hearing. The court reasoned that the offence of conspiracy to defraud and the offence of conspiracy to cheat and defraud, while related, were distinct offences. The principle of double jeopardy did not apply because the applicants had not yet been tried or convicted of the first offence, and the committal hearing was a preliminary step in the prosecution of a separate charge. The court emphasised that a committal hearing is not a trial, and the prohibition writ is a remedy to prevent a court from acting without or in excess of its jurisdiction.
The application for the writ of prohibition was dismissed.