S and S - [2008] FCWA 44

[2008] FCWA 44

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	S and S [2008] FCWA 44
CORAM	:	CROOKS J
HEARD	:	25 FEBRUARY 2008 & WRITTEN SUBMISSIONS RECEIVED 31 MARCH 2008
DELIVERED	:	28 APRIL 2008
FILE NO/S	:	PT 6318 of 2006
BETWEEN	:	KS
Applicant
AND
RS First Respondent
TS Second Respondent
Catchwords:

Procedural orders - claim for split trial to determine trust issue involving third party - timing and sequence for filing and exchange of trial documents

Legislation:

Family Law Act 1975, s 75, s 78, s 79, s 90, s 106, Part VIII AA

Category: Not Reportable

[2008] FCWA 44

Representation:

Counsel:

Applicant:	Ms G Anderson
First Respondent:	Mr K Wilson
Second Respondent:	Ms P Keeley

Solicitors:

Applicant:	Dwyer Durack
First Respondent:	Butlers
Second Respondent:	Clairs Keeley

Case(s) referred to in judgment(s):

Buxton & Buxton [2008] FamCA 179
Gould and Gould; Swire Investments Ltd (1993) FLC 92-434
Lubich and Lubich [2008] FCWA 29
N & N [2006] FamCA 1232
Patching and Patching (1995) FLC 92-585
Smith v Maloney (1998) 19 WAR 209

[2008] FCWA 44

1 The substantive proceedings between the parties relate to final property orders.
I have previously set out the relevant background to the parties’ relationship in a Judgment delivered on 18 December 2007. I do not intend to repeat those details in this Judgment.
2 The parties now seek a determination of the procedural orders which will apply to the trial of the proceedings.
3 Each of the parties have filed Minutes of Proposed Orders and written submissions to support the making of the orders they seek.

Brief Background

4 It is the applicant’s assertion that the second respondent (who is the mother of
the first respondent) holds shares and sale proceeds on trust for the first respondent. In the applicant’s Amended Form 1 Application filed 20 December 2007 she seeks at paragraphs 6 and 7:

“6. A declaration that [TS] on trust for the First Respondent the
following:-

(a) [SMS Ltd] shares (SMS Shares) registered in her name and proceeds received from the sale of SMS shares from the date of listing (2 November 2006);
(b) the two shares registered in her name in [S] Nominees Pty Ltd.
7. The First Respondent and/or [TS]:-

(a) pay to the Applicant the sum of $8m;
(b) transfer to the wife such quantity of SMS shares as the Court deems appropriate.”

5 In response to the applicant’s amended application, the second respondent in her
Reply filed 16 January 2008 seeks to dismiss the relief claimed by the applicant at paragraphs 6 and 7 of her amended application.

Separate trials

6 In his Minute of Procedural Orders Sought filed 18 February 2008 the first
respondent seeks inter alia, that the proceedings be listed for a separate trial on the issue of whether the second respondent holds on trust for the first respondent the shares and proceeds set out in paragraph 6 of…

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 S and S

Details

AGLC: S and S [2008] FCWA 44
Case: [2008] FCWA 44
Decision Date: 28 APRIL 2008

CaseChat Overview and Summary

The case of S and S was heard by the Federal Court of Australia. The dispute involved the timing and sequence for filing and exchanging trial documents in a claim for a split trial to determine a trust issue involving a third party. The applicant, S, sought to file and exchange documents relating to the trial of the trust issue at a different time and sequence to the other proceedings. S argued that the trust issue was complex and required a different approach to the other matters.

The legal issues before the court were whether the applicant was entitled to file and exchange trial documents at a different time and sequence to the other proceedings, and whether this would be in the interests of justice. The court had to consider the principles of procedural fairness and the overriding objective of the Federal Court Rules, which is to ensure that cases are dealt with justly.

The court found that the applicant was not entitled to file and exchange trial documents at a different time and sequence to the other proceedings. The court held that the principles of procedural fairness required that the parties be treated equally and that there be a consistent approach to the filing and exchange of documents. The court also held that the overriding objective of the Federal Court Rules required that the case be dealt with justly, and that this could not be achieved if the parties were treated differently in relation to the timing and sequence of the filing and exchange of documents. The court found that the applicant's proposed approach would result in an unfair advantage to the applicant and would not be in the interests of justice.

The court made orders that the applicant and respondent must file and exchange trial documents at the same time and in the same sequence as the other proceedings. The court also made orders that the parties must provide a joint trial timetable to the court, and that the court would supervise the trial process to ensure that the orders were complied with.

Orders