Sarina and Sarina & Ors - [2011] FamCA 826

FAMILY COURT OF AUSTRALIA

SARINA & SARINA AND ORS

[2011] FamCA 826

FAMILY LAW – PRACTICE AND PROCEDURE – Pleadings

Gilchrist & Gilchrist and Anor [2009] FamCAFC 199
Thomas & Ors v SMP (International) Pty Ltd & Ors [2010] NSWSC 822

APPLICANT:

Ms Sarina

RESPONDENT:

Mr Sarina

SECOND RESPONDENT:

B Pty Ltd

THIRD RESPONDENT:

C Pty Ltd

FOURTH RESPONDENT:

D Pty Ltd

FILE NUMBER:

BRC

226

2008

DATE DELIVERED:

25 October 2011

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Bell J

HEARING DATE:

16 May 2011

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Browns Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Erskine of Counsel

SOLICITOR FOR THE RESPONDENT:

Q5 Law

COUNSEL FOR THE SECOND

RESPONDENT:

Mr Hackett of Counsel

SOLICITOR FOR THE SECOND

RESPONDENT:

Tucker & Cowen Solicitors

COUNSEL FOR THE THIRD

RESPONDENT:

Mr Alexander of Counsel

SOLICITOR FOR THE THIRD

RESPONDENT:

Compass Legal Solutions

COUNSEL FOR THE FOURTH

RESPONDENT:

Mr Hackett of Counsel

SOLICITOR FOR THE FOURTH

RESPONDENT:

Tucker & Cowen Solicitors

Orders

That the following paragraphs of the Further Amended Statement of Claim filed 13 May 2011 be struck out:
(a) Paragraph 40LL;
(b) Paragraph 41.
Insofar as Paragraph 1(a) of the Prayer for Relief, that this be restricted to the period prior to 11 February 2010.
That the Application in a Case filed 13 April 2011 by the Second and Fourth Respondents be otherwise dismissed.
Costs of and incidental to this Application be reserved to trial.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 226 of 2008

Ms Sarina

Applicant

And

Mr Sarina

Respondent

And

B Pty Ltd

Second Respondent

And

C Pty Ltd

Third Respondent

And

D Pty Ltd

Fourth Respondent

REASONS FOR JUDGMENT

This is an Application in a Case filed 13 April 2011 by the Second and Fourth Respondents. Those parties initially sought the Applicant Wife’s Statement of Claim filed 15 March 2011 be struck out, the Wife’s application as against the Second and Fourth Respondents be dismissed and that the Wife bear the costs of this Application on an indemnity basis.
This matter came before me previously on 6 December 2010 in relation to an Application in a Case of the Second and Fourth Respondents filed

28 September 2010, which was couched in almost identical terms to that of the Application before me today. At that hearing in December there was also an Application of the Third Respondent, again in virtually identical terms to this most recent application. In relation to those applications before me in December, I made Orders and published Reasons for Judgment on 22 February 2011 acceding to the orders sought to strike out the Wife’s Statement of Claim. The Wife was also granted leave to file a fresh Statement of Claim within 21 days.
Since this matter was before me last, as Counsel for the Second and Fourth Respondents informs me…

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

Case: [2011] FamCA 826
Decision Date: 25 October 2011

CaseChat Overview and Summary

In the matter of *Sarina and Sarina & Ors*, Bell J of the Family Court of Australia considered an application to strike out certain paragraphs of a Further Amended Statement of Claim. The dispute concerned allegations made within family law proceedings, with the Second and Fourth Respondents seeking to have specific parts of the pleading removed.

The central legal issues before the court were whether paragraphs 40LL and 41 of the Further Amended Statement of Claim were embarrassing or otherwise an abuse of process, and whether a specific prayer for relief should be restricted in its temporal scope. The court was required to determine if these pleadings were so vague, irrelevant, or prolix as to prejudice the fair trial of the proceedings or cause undue delay or expense.

Bell J ordered that paragraphs 40LL and 41 of the Further Amended Statement of Claim be struck out. Furthermore, the court restricted the first paragraph of the Prayer for Relief to the period prior to 11 February 2010. The application by the Second and Fourth Respondents was otherwise dismissed, and the costs of the application were reserved to be determined at trial.

Orders

Orders of the court

That the following paragraphs of the Further Amended Statement of Claim filed 13 May 2011 be struck out:

(a) Paragraph 40LL;

(b) Paragraph 41.

Insofar as Paragraph 1(a) of the Prayer for Relief, that this be restricted to the period prior to 11 February 2010.

That the Application in a Case filed 13 April 2011 by the Second and Fourth Respondents be otherwise dismissed.

Costs of and incidental to this Application be reserved to trial.

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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