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Ritter & Ritter & Anor

Case [2019] FCCA 782 30 April 2019

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FEDERAL CIRCUIT COURT OF AUSTRALIA

RITTER & RITTER & ANOR

[2019] FCCA 782

Catchwords:
FAMILY LAW – Summary dismissal application of s.79A application – relevant legal principles.

Legislation:

Family Law Act 1975 (Cth), s.79A

Federal Circuit Court of Australia Act 1999, s.17A
Federal Circuit Court Rules 2001, r.13.10
Federal Court Act 1976, s.31A
Evidence Act 1995, s.140

Cases cited:

Bigg v Suzi [1998] FLC 92-799
Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd [2006] FCA 1352

Derry v Peek (1889) 14 AppCas 337

Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87

Florie (1980) FLC 90-857

Fortron Automotive Treatments Pty Ltd v Jones (No.2) [2006] FCA 1401

Gonzalez-Barbosa v Go To Court Franchising Pty Ltd & Anor [2017] FCCA 361

In the Marriage of Arpas (1989) FLC 92-042

In the Marriage of Gebert (1990) 14 FamLR 62

In the Marriage of Holland (1982) FLC 91-243

In the Marriage of Kokl (1981) 7 Fam LR 59

In the Marriage of Parker (1983) FLC 91-364

In the Marriage of Patching (1995) FLC 92-585

In the Marriage of Prowse (1995) FLC 92-557

In the Marriage of Spratley (No 2) (1978) FLC 90-414

In the Marriage of Suiker (1993) 17 FamLR 236

Jefferson Ford Pty Ltd v Ford Motor Co of Australia (2008) 167 FCR 372
Lindon v The Commonwealth (1996) 190 CLR 311

Molier & Van Wyk (1980) 7 Fam LR 18

Mullae (1983) FLC 91-303

Official Trustee in Bankruptcy v Donovan (1996) FLC 92-703

Parker & Parker (1983) FLC 91 – 364

Pelerman & Pelerman (2000) FLC 93-037

Re Gilbert and the Estate of Gilbert (deceased) (1990) FLC 92-125

Riva NSW Pty Limited v Official Trustee in Bankruptcy [2017] FCA 188
Spencer v The Commonwealth [2010] HCA 28

Thorne v Kennedy [2017] HCA 49

Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd [2007] FMCA 157

White Industries Australia v Assistant Commissioner of Taxation [2007] FCA 511

Applicant:

MR RITTER

First Respondent:

MS RITTER

Second Respondent:

MS X RITTER

File Number:

PAC 3900 of 2018

Judgment of:

Judge Obradovic

Hearing date:

22 March 2019

Date of Last Submission:

22 March 2019

Delivered at:

Parramatta

Delivered on:

30 April 2019

REPRESENTATION

Appearing for the Applicant:

Mr Lynch

Solicitors for the Applicant:

Beswick Lynch Lawyers

Appearing for the First Respondent:

Mr Hawach

Solicitors for the First Respondent:	McAuley Hawach Lawyers
Counsel for the Second Respondent:	Mr Todd
Solicitors for the Second Respondent:	Everett Evans Solicitors

ORDERS

The Initiating Application filed 20 August 2018 is summarily dismissed.
Remove all outstanding issues from the list of cases awaiting finalisation.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3900 of 2018

MR RITTER

Applicant

And

MS RITTER

First Respondent

MS X RITTER

Second Respondent

REASONS FOR JUDGMENT

Introduction

On 16 July 2012, the Federal Circuit Court of Australia made final orders between Mr Ritter…

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 Ritter & Ritter & Anor

Details

AGLC: Ritter & Ritter & Anor [2019] FCCA 782
Case: [2019] FCCA 782
Decision Date: 30 April 2019

CaseChat Overview and Summary

In the Family Court of Australia, Judge Obradovic considered an application by the respondents for the summary dismissal of an Initiating Application filed on 20 August 2018, which sought to set aside or vary final property orders pursuant to section 79A of the *Family Law Act 1975* (Cth). The parties involved were the applicant, referred to as Ritter, and the respondents, also referred to as Ritter and another party.

The central legal issue before the court was whether the applicant's section 79A application had any real prospect of success, such that it should be permitted to proceed to a final hearing, or whether it was so lacking in merit that it should be summarily dismissed. This required the court to assess the applicant's grounds for seeking to set aside the original orders against the relevant legal principles governing applications for summary dismissal in family law proceedings.

Judge Obradovic applied the principles established in cases such as *Daher v De George* and *R v R*, which outline the stringent test for summary dismissal. The court found that the applicant had failed to demonstrate any arguable case or substantial question to be tried regarding the alleged fraud, duress, or other vitiating factors necessary to justify setting aside the final property orders. Consequently, the court concluded that the application had no reasonable prospect of success and that it was appropriate to dismiss the proceedings summarily to avoid unnecessary costs and delay.

The court ordered that the Initiating Application filed on 20 August 2018 be summarily dismissed and that all outstanding issues related to this application be removed from the list of cases awaiting finalisation.

Orders

Orders of the court

The Initiating Application filed 20 August 2018 is summarily dismissed.

Remove all outstanding issues from the list of cases awaiting finalisation.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Ritter & Ritter & Anor [2019] FCCA 782

Most Recent Citation

A2B Australia Limited v Verma [2021] FedCFamC2G 204

Cases citing this decision · 10 of 10 shown

Top Plus Pty Ltd v Mix Entertainment Pty Ltd
[2022] FedCFamC2G 981 Para 2

…lia Limited [2008] FCAFC 60; (2008) 167 FCR 372 at [124] to [132], and, in this Court, conveniently summarised in, inter alia, Ritter & Ritter & Anor [2019] FCCA 782 at [4] to [13] by Judge Obradovic, and also by Judge Lucev in Ellis v Wadjemup Trading (No.3) [2018] FCCA 3075 at [2] to [11]. [19]Section 17A of the…
A2B Australia Limited v Verma
[2021] FedCFamC2G 204 Para 12

…] to [132], and more recently in the Federal Circuit Court, as this Court was formerly named, by her Honour Judge Obradovic in Ritter v Ritter & Anor [2019] FCCA 782 at [4] to [13].…
Otter Products, LLC v Haydon
[2021] FCCA 2012 Para 21

…ralia Ltd [2008] FCAFC 60; [2008] 167 FCR 372 at [124] to [132], and in this Court are conveniently summarised in, inter alia, Ritter & Ritter & Anor [2019] FCCA 782 at [4] to [13] by Judge Obradovic, and also by Judge Lucev in Ellis v Wadjemup Trading Pty Ltd ATF Wadjemup Unit Trust Trading As Rottnest Express &…
Schreiber v The University of Queensland
[2021] FCCA 48 Para 11

…ermination could be made that the proceeding would necessarily fail. For recent judicial expressions of the test see Ritter & Ritter & Anor [2019] FCCA 782 at [10] and Open Eye Pty Ltd v Audio-Visual Copyright Society (t/as Screenrights) [2020] FCCA 7 at [12]-[13].…
Murphy v Innovior Pty Ltd
[2020] FCCA 2060 Para 1

…y, and superior court authorities, were conveniently summarised in this Court, inter alia, by Judge Obradovic in Ritter v Ritter and Anor [2019] FCCA 782 at [4] to [13], and by Judge Lucev in Ellis v Wadjemup Trading (No. 3) [2018] FCCA 3075 at [6] to [11]. I have also had regard to Shammas v Canberra Institute of…
PositiveG Investments Pty Ltd as trustee for the PositiveG Trust v Li
[2020] FCCA 2548

…R 450 Review Australia Pty Limited v New Cover Group Pty Limited [2008] FCA 1589; (2008) 79 IPR 236. Ritter & Ritter & Anor [2019] FCCA 782 Applicant: POSITIVEG INVESTMENTS PTY LTD AS TRUSTEE FOR THE POSITIVEG TRUST…
Ritter & Ritter
[2020] FamCAFC 86

…[2019] FCCA 782…
Open Eye Pty Ltd v AUDIO-VISUAL Copyright Society Trading as Screenrights
[2020] FCCA 7 Para 12

…ently summarised by Judge Obradovic in Ritter & Ritter & Anor [4] at [4]-[13] and Judge Lucev in Ellis v Wadjemup Trading (No.3) [5] at [6]-[11]. [4] [2019] FCCA 782 [5] [2018] FCCA 3075…
Shreea v Ezy Mart Pty Ltd
[2019] FCCA 3050 Para 2

…7A of the Act, and summary dismissal under r.13.10 of the Rules were recently summarised in this Court by Judge Obradovic in Ritter v Ritter and Anor [2019] FCCA 782 at [4] to [13], and by Judge Lucev in Ellis v Wadjemup Trading (No.3) [2018] FCCA 3075 at [6] to [11]. I refer to and rely on their Honours’ explicat…
Ritter & Ritter
[2019] FamCAFC 109

…[2019] FCCA 782…

View all 10 citing cases →

Cases cited in this decision · 15 of 15 shown

Thorne v Kennedy
[2017] HCA 49 Para 10

…made according to interest does not exclude duress. It is the characteristic of duress properly so called." (footnotes omitted) [33] Thorne v Kennedy [2017] HCA 49 at [26]…
Gonzalez-Barbosa v Go to Court Franchising Pty Ltd & Anor
[2017] FCCA 361 Para 6

…ary to which this Court has had regard.[8] [7] [2017] FCA 188 at [45] – [49] [8] See also Gonzalez-Barbosa v Go To Court Franchising Pty Ltd & Anor [2017] FCCA 361 where Judge A. Kelly conducted a helpful and detailed review of relevant authorities in relation to the proper approach to be taken when considering an…
Riva NSW Pty Limited v Official Trustee in Bankruptcy
[2017] FCA 188 Para 6

…ederal Court held that the principles dealing with s31A are well established and provided a useful summary to which this Court has had regard.[8] [7] [2017] FCA 188 at [45] – [49] [8] See also Gonzalez-Barbosa v Go To Court Franchising Pty Ltd & Anor [2017] FCCA 361 where Judge A. Kelly conducted a helpful and de…
Spencer v Commonwealth of Australia
[2010] HCA 28 Para 5

…rms to that contained in s17A Federal Circuit Court Act. The Court in this instance has firmly kept in mind what the High Court has held therein. [6] [2010] HCA 28 at [24] – [25] in particular…
White Industries Australia Ltd v Federal Commissioner of Taxation
[2007] FCA 511 Para 4

…, a decision cited with approval by the Federal Court in White Industries Australia v Assistant Commissioner of Taxation[5]. [4] [2007] FMCA 157 [5] [2007] FCA 511 at [58] per Lindgren J…
Vivid Entertainment LLC v Digital Sinema Australia Pty Ltd
[2007] FMCA 157 Para 4

…Australia Pty Ltd[4] , a decision cited with approval by the Federal Court in White Industries Australia v Assistant Commissioner of Taxation[5]. [4] [2007] FMCA 157 [5] [2007] FCA 511 at [58] per Lindgren J…
Fortron Automotive Treatments Pty Ltd v Jones (No 2)
[2006] FCA 1401 Para 10

…or Co of Australia (2008) 167 FCR 372 at [45]; See also Riva at [49] quoting Cassimatis [20] see Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20]…
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd
[2006] FCA 1352 Para 10

…In Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd [2006] FCA 1352;(2006) 236 ALR 770 at [45] Rares J held: “…the Court must be very cautious not to do a party an injustice by summarily dismissing the proceedings where, in accordance with the principles in Hocking v Bell [1947] HCA 54; (1…
Harrington v Lowe
[1996] HCA 8 Para 9

…nt to the power identified in those learned decisions.[18] Therefore, those authorities are of no direct application to the present application. [15] (1996) 190 CLR 311 [16] [1998] FLC 92-799 [17] (2000) FLC 93-037 [18] See for example the discussion in Jacobs v Vale at [8] – [13];…
Fancourt v Mercantile Credits Ltd
[1983] HCA 25

…v Suzi [1998] FLC 92-799 Boston Commercial Services Pty Ltd v GE Capital Finance Australia Pty Ltd [2006] FCA 1352 Derry v Peek (1889) 14 AppCas 337 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 Florie (1980) FLC 90-857 Fortron Automotive Treatments Pty Ltd v Jones (No.2) [2006] FCA 1401 Gonzalez-Barbosa v Go To Court Franchising P…
Hocking v Bell
[1947] UKPCHCA 1 Para 10

…not to do a party an injustice by summarily dismissing the proceedings where, in accordance with the principles in Hocking v Bell [1947] HCA 54; (1947) 75 CLR 125, contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed. As soon as the evidence may have…
Derry v Peek
[1889] UKHL 1 Para 8

…person guilty of it is immaterial. It matters not that there was no intention to cheat or injure the person to whom the statement was made.[31] [31] Derry v Peek (1889) 14 AppCas 337 at 374…
Hocking v Bell
[1947] HCA 54 Para 10

…e very cautious not to do a party an injustice by summarily dismissing the proceedings where, in accordance with the principles in Hocking v Bell [1947] HCA 54; (1947) 75 CLR 125, contested evidence might reasonably be believed one way or the other so as to enable one side or the other to succeed. As soon as the…
Lindon v Commonwealth (No 2)
[1996] HCA 14

…pratley (No 2) (1978) FLC 90-414 In the Marriage of Suiker (1993) 17 FamLR 236 Jefferson Ford Pty Ltd v Ford Motor Co of Australia (2008) 167 FCR 372 Lindon v The Commonwealth (1996) 190 CLR 311 Molier & Van Wyk (1980) 7 Fam LR 18 Mullae (1983) FLC 91-303 Official Trustee in Bankruptcy v Donovan (1996) FLC 92-703 Parker & Parker (…
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Ltd
[2008] FCAFC 372 Para 10

…eds, it cannot be said that the claim has "no reasonable prospect of success". [20] [19] See e.g. Jefferson Ford Pty Ltd v Ford Motor Co of Australia (2008) 167 FCR 372 at [45]; See also Riva at [49] quoting Cassimatis [20] see Fortron Automotive Treatments Pty Ltd v Jones (No 2) [2006] FCA 1401 at [20]…

Legislation cited in this decision · 5

Evidence Act 1995 (Cth)
140 2 mentions (from Para 1)
Family Law Act 1975 (Cth)
79A 2 mentions (from Para 1)
Federal Circuit Court Rules 2001 (Cth)
13.10 2 mentions (from Para 2)
Federal Circuit Court of Australia Act 1999 (Cth)
17A 1 mention
Federal Court Act 1976 (Cth)
31A 1 mention