Sanderson and Oliver - [2016] FCCA 412

FEDERAL CIRCUIT COURT OF AUSTRALIA

SANDERSON & OLIVER

[2016] FCCA 412

Catchwords:
FAMILY LAW – Respondent’s Application to have Applicant’s Initiating Application struck out – in circumstances where the Applicant contemporaneously makes an Application seeking leave to proceed out of time and an Application for final relief – where the Respondent submits for this reason the Initiating Application is invalid. HELD – Application to strike out is dismissed – Procedural orders made.

Legislation:

Administration and Probate Act 1958 (Vic), Part IV

Family Law Act 1975 (Cth), ss.44 (3), 44 (5), 44 (6), 79, 90K (1)(a), (b), (e)

Family Law Amendment Act 2000 (Cth), Sch. 3, Item 37
Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth), Sch.1, Item 36
Relationships Act 2008 (Vic), s.36

In the marriage of Slater (1985) FLC 91-641
Holden & Wolff [2014] FamCAFC 224
Hayes & Eddington (No.3) [2014] FamCA 336
Madin & Palis [2015] FamCAFC 65

Applicant:

MR SANDERSON

Respondent:

MS OLIVER

File Number:

MLC 2447 of 2015

Judgment of:

Judge Bender

Hearing date:

2 February 2016

Date of Last Submission:

2 February 2016

Delivered at:

Melbourne

Delivered on:

5 April 2016

REPRESENTATION

Counsel for the Applicant:

Mr Carlile

Solicitors for the Applicant:

Sutherland Lawyers

Queens Counsel for the Respondent:	Mr Glick QC
Counsel for the Respondent	Mr Schlicht

Solicitors for the Respondent:

Simon Nixon & Associates

ORDERS

The Respondent’s application that the Applicant’s Initiating Application filed 26 March 2015 be struck out is dismissed.
The matter be adjourned to 22 July 2016 at 10.00am for interim hearing in respect of the Applicant’s application pursuant to section 44(6) (with an estimated hearing time of half a day).
The Applicant file and serve any further affidavit to be relied upon in relation to the application to proceed out of time by 4.00pm on 24 June 2016.
The Respondent file and serve any further affidavit to be relied upon in relation to the application to proceed out of time by 4.00pm on 8 July 2016.
There be no Order as to costs.

AND THE COURT NOTES THAT:

A.In the event of non-compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a)the filing of documents; or
(b)any other procedural issues,

the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
B.To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Judge, or by another appropriate court officer, shortly prior to the final hearing date.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 2447…

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 Sanderson and Oliver

Details

AGLC: Sanderson and Oliver [2016] FCCA 412
Case: [2016] FCCA 412
Decision Date: 5 April 2016

CaseChat Overview and Summary

In *Sanderson and Oliver*, heard before Judge Bender, the dispute concerned an application by the Respondent to strike out the Applicant's Initiating Application filed on 26 March 2015.

The primary legal issue before the court was whether the Applicant's Initiating Application should be struck out. This implicitly involved considering the Applicant's right to proceed with their case, potentially out of time.

Judge Bender dismissed the Respondent's application to strike out the Applicant's Initiating Application. The court then adjourned the matter for an interim hearing concerning the Applicant's application to proceed out of time, setting a date for this hearing and imposing deadlines for the filing of further affidavits by both parties. The court made no order as to costs.

Orders

Orders of the court

The Respondent’s application that the Applicant’s Initiating Application filed 26 March 2015 be struck out is dismissed.

The matter be adjourned to 22 July 2016 at 10.00am for interim hearing in respect of the Applicant’s application pursuant to section 44(6) (with an estimated hearing time of half a day).

The Applicant file and serve any further affidavit to be relied upon in relation to the application to proceed out of time by 4.00pm on 24 June 2016.

The Respondent file and serve any further affidavit to be relied upon in relation to the application to proceed out of time by 4.00pm on 8 July 2016.

There be no Order as to costs.

AND THE COURT NOTES THAT:

A. In the event of non-compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:

(a) the filing of documents; or

(b) any other procedural issues,

the application may be struck out, the proceedings may be directed to proceed undefended or the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.

B. To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Judge, or by another appropriate court officer, shortly prior to the final hearing date.

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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