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Ross v Gordon (No 2)

Ross v Gordon (No 2)

Case [2023] ACTCA 40 18 October 2023

Statutory Interpretation

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:	Ross v Gordon (No 2)
Citation:	[2023] ACTCA 40
Hearing Date:	24 August 2023
Decision Date:	18 October 2023
Before:	McCallum CJ, Baker and McWilliam JJ
Decision:	(1) The appeal is allowed in part. (2) Order 2 made by the primary judge on 20 October 2022 in Ross v Gordon (No 3) [2022] ACTSC 289 is set aside. (3) In lieu of the costs order set aside, the following orders are made: (a) Each party is to pay their own costs of the proceeding SC 80 of 2019. (b) Each party is to pay their own costs of the appeal proceedings CA 19 of 2021 and CA 63 of 2022.
Catchwords:	APPEAL – CIVIL LAW – jurisdiction of Supreme Court following remittal of matter by Court of Appeal pursuant to s 37O(1)(c) of the Supreme Court Act 1933 (ACT) – remittal limited by reasons for judgment. APPEAL – PRACTICE AND PROCEDURE – grant of declaratory relief – whether declaration should have been granted to give effect to reasons for judgment – where declaration was not sought – where respondent agreed to abide by reasons – no practical utility of issuing a declaration – declaratory relief not granted. APPEAL – COSTS – where costs of appeal were ordered to form part of the costs of the proceedings in the Supreme Court – whether costs to follow the event – costs intended to be in the cause – where each party had mixed success – parties to pay their own costs.
Legislation Cited:	Cheques Act 1986 (Cth) Court Procedures Rules 2006 (ACT) r 1721 Family Provision Act 1969 (ACT) s 8 Supreme Court Act 1933 (ACT) s 37O(1)(c)
Cases Cited:	Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564 Bowen Investments Pty Ltd v Tabcorp Holdings Ltd (No 2) [2008] FCAFC 107 Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8 Forster v Jododex Australia Pty Ltd [1972] HCA 61; 127 CLR 421 GJ v AS (No 4) [2017] ACTCA 7 House v The King [1936] HCA 40; 55 CLR 499 Hulanicki v Walton (No 2) [2015] ACTCA 45 Kaluza v Repatriation Commission [2011] FCAFC 97; 280 ALR 621 Lim v Comcare [2019] FCAFC 104 Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 Peacock v Repatriation Commission [2007] FCAFC 156; 161 FCR 256 Plaintiff M61/2010E v Commonwealth [2010] HCA 41; 243 CLR 319 Priestley v Priestley (No 2) [2016] NSWSC 1259 Repatriation Commission v Nation [1995] FCA 1277; 57 FCR 25 Ross v Gordon (No 3) [2022] ACTSC 289 Ross v Gordon [2021] ACTSC 41 Ross v Gordon [2022] ACTCA 21; 18 ACTLR 89 Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority [2009] NSWCA 178; 168 LGERA 1 Wyzenbeek v Australasian Marine Imports Pty Ltd (No 3) [2019] FCA 439
Parties:	James Young Ross ( Appellant) Donna Maree Gordon ( First…

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 Ross v Gordon (No 2)

Details

AGLC: Ross v Gordon (No 2) [2023] ACTCA 40
Case: [2023] ACTCA 40
Decision Date

CaseChat Overview and Summary

The Supreme Court of the Australian Capital Territory, constituted by McCallum CJ, Baker and McWilliam JJ, heard an appeal concerning the distribution of an estate following the death of Ms Olga Hart. The appellant, Ms Hart's former de facto partner, appealed a decision of Loukas-Karlsson J which dismissed his proceedings and ordered him to pay costs. The dispute centred on the appellant's contention that certain cheques issued by the deceased did not create a debt owed by the Estate, and on the appropriate costs orders for the litigation.

The legal issues before the Court of Appeal were whether the primary judge had erred in narrowly construing the scope of a remittal from a previous Court of Appeal decision, specifically regarding the appellant's claim for declaratory relief. The second issue was whether the primary judge had miscarried her discretion in relation to the award of costs. The appellant argued that the remittal should have encompassed his claim for a declaration that the cheques did not create a debt, and that he should be awarded costs for the proceedings and appeals.

The Court found that the primary judge had not erred in determining that the remittal order did not extend to a claim for declaratory relief, as this relief had not been sought in the Court of Appeal and was not within the scope of the remittal. However, the Court agreed with the appellant that the primary judge had erred in her approach to costs. The Court reasoned that given the mixed success of the parties and the intention that costs should be "in the cause", the appropriate order was for each party to bear their own costs for the entirety of the litigation, including the initial proceedings, the previous appeal, and the current appeal.

Consequently, the appeal was allowed in part. Order 2 of the primary judge's costs order of 20 October 2022 was set aside. In its place, the Court ordered that each party was to pay their own costs of the proceeding SC 80 of 2019, and each party was to pay their own costs of the appeal proceedings CA 19 of 2021 and CA 63 of 2022.

Orders