Stopford Malloy & Malloy - [2020] FamCAFC 69

FAMILY COURT OF AUSTRALIA

STOPFORD MALLOY & MALLOY AND ORS

[2020] FamCAFC 69

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant seeks an order that the applications for leave in the appeal and the cross-appeal be dealt with on the papers without the need for oral submissions – Where the application is not opposed by the second respondents or the interveners – Where the first respondent opposes such an order being made asserting that it is a denial of natural justice and a denial of his rights as a self-represented litigant – Where to provide for the applications for leave here to be dealt with on the papers only does not infringe the requirements of procedural fairness or natural justice – Where it is clear that the first respondent can ably present his case albeit he is self-represented – Where the first respondent will not be disadvantaged in any way by the applications being heard on the papers only – Orders made as sought by the applicant.

Acts Interpretation Act 1981 (Cth) s 13(2)(d)
Family Law Act 1975 (Cth) ss 94AA(3), 94AAB
Family Law Rules 2004 (Cth) r 22.12

Bennett v Min for Public Works (NSW) (1908) 7 CLR 372
International Finance Trust Company Ltd V New South Wales Crimes Commission (2009) 240 CLR 319
Silk Bros Pty Ltd v SEC (Vic) (1943) 67 CLR 1

APPLICANT:

Ms Stopford Malloy

FIRST RESPONDENT:

Mr Malloy

SECOND RESPONDENTS:

The Malloy Group and
Mr Q Malloy

INTERVENERS:

Mr R and Mr S, Receivers

FILE NUMBER:

ADC

2595

2015

APPEAL NUMBER:

SOA

2020

DATE DELIVERED:

1 April 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

DATE HEARD:

26 March 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

13 December 2019

LOWER COURT MNC:

[2019] FamCA 986

REPRESENTATION

SOLICITORS FOR THE APPLICANT:

Piper Alderman Lawyers

COUNSEL FOR THE

APPLICANT:

Mr Wells of Queen’s Counsel with Mr McGinn

THE FIRST RESPONDENT:

In Person

SOLICITORS FOR THE

SECOND RESPONDENTS:

Barnes Brinsley Shaw Lawyers

COUNSEL FOR THE

SECOND RESPONDENTS:

Mr Harris of Queen’s Counsel with Mr Barnes

SOLICITORS FOR THE INTERVENERS:

Crawford Legal

COUNSEL FOR THE INTERVENERS:

Mr Jackson

Orders Made 26 March 2020

Pursuant to Rule 22.12 of the Family Law Rules 2004 (Cth) the applications of the applicant for leave to appeal be dealt with by the Full Court without an oral hearing.
The said applications for leave to appeal be dealt with by way of written submissions.
The said applications for leave to appeal be determined prior to the fixing of a date for the hearing of any appeal by the Full Court.
The said applications for leave to appeal be referred to a directions hearing before the Southern Appeal Registrar for orders to be made as to the preparation and filing of the application book, the provision of electronic transcript and the filing of written submissions.
Certify fit for Senior Counsel.

Note: The form of the order is…

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 Stopford Malloy & Malloy

Details

AGLC: Stopford Malloy & Malloy [2020] FamCAFC 69
Case: [2020] FamCAFC 69
Decision Date: 1 April 2020

CaseChat Overview and Summary

In the case of Stopford Malloy & Malloy and Others, Ms Stopford Malloy, the applicant, sought an order that the applications for leave in the appeal and the cross-appeal be dealt with on the papers without an oral hearing. This was opposed by the first respondent, Mr Malloy, who argued that it was a denial of natural justice and a denial of his rights as a self-represented litigant. The second respondents and the interveners did not oppose the application. The issue for the court was whether the applications for leave should be dealt with by written submissions without an oral hearing or by way of oral hearing with oral submissions.

The court found that the consent of the parties was not required for an application for leave to be dealt with without an oral hearing, as per the relevant provisions of the Family Law Act 1975 (Cth) and the Family Law Rules 2004 (Cth). The court also found that providing for the applications to be dealt with on the papers without an oral hearing did not infringe the requirements of procedural fairness or natural justice. The first respondent had demonstrated that he could ably present his case, albeit he was self-represented, and the court found that he would not be disadvantaged in any way by the applications being heard on the papers without an oral hearing.

In conclusion, the court made the orders sought by the applicant, allowing the applications for leave in the appeal and cross-appeal to be dealt with on the papers without an oral hearing. The court found that the first respondent's arguments for an oral hearing were not persuasive and that it was in the interests of efficient and effective case management to deal with the applications in this manner. The orders made by the court included that the applications for leave be dealt with by way of written submissions, that they be determined prior to the fixing of a date for the hearing of any appeal, and that they be referred to a directions hearing before the Southern Appeal Registrar for orders to be made as to the preparation and filing of the application book, the provision of an electronic transcript, and the filing of written submissions.

Orders