Tate & Tate - [2003] FamCA 113

[2003] FamCA 113

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA                 Appeal No SA 85 of 2002
AT MELBOURNE BY VIDEO LINK  File No AD 4316 of 1993

BETWEEN:

JOHN RICHARD DONALD TATE
Applicant Husband
- and -

MARIE THERESE TATE
Respondent Wife

REASONS FOR JUDGMENT

CORAM:  NICHOLSON CJ, KAY & MONTEITH JJ
DATE OF HEARING:                 20 February 2003
DATE OF JUDGMENT:             20 February 2003

APPEARANCES: Mr Richards of Counsel, instructed by, Camatta Lempens Pty Ltd, 345 King William Street, Adelaide SA 5000, appeared on behalf of the Applicant Husband.

Mr Birchall of Counsel, instructed by Diane Myers Pty Ltd, Barristers and Solicitors, 189 Greenhill Road, Parkside SA 5063, appeared on behalf of the Respondent Wife.

Appeal of Tate                   SA 85 of 2002
Date of Hearing                 20 February 2003
Date of Judgment             20 February 2003
Coram  Nicholson CJ, Kay and Monteith JJ

CATCHWORDS: Practice and Procedure – Orders – Sentence of imprisonment imposed by trial Judge – Appeal against sentence dismissed by Full Court - Application for special leave to appeal filed - Application for stay – Principles governing discretion – Application for stay dismissed.

NICHOLSON CJ

This is an application for the further stay of a warrant of commitment issued in these proceedings by order of this Full Court on 13 February 2003.

When the matter came before me, sitting as a single judge on that day, I granted a stay in favour of the applicant for seven days to this day. The basis of the grant of the stay was that he was about to undergo medical treatment and I took the view that it was not unreasonable to grant a stay of seven days.

We now have a further application for a stay before us upon two grounds: one being that the applicant has made an application for special leave to appeal to the High Court of Australia; and secondly in the alternative, that he requires further medical treatment up to and including 24 February 2003.

The primary issue before us relates to the stay based upon the special leave application. Broadly, the applicant says that if a stay is not granted then the reality is that he will have served the sentence of four months imposed by Murray J before the High Court can deal with his special leave application. That is obviously a relevant matter and a matter that we are required to take into account in considering the issue.

However, the authorities - most of which are usefully collected in the decision of this court in Fauna Holdings Pty Ltd and McGillivray v Mitchell (2000) FLC 93-024 - lay down that the jurisdiction to exercise a stay following the imposition of a term of imprisonment is exercised most sparingly on the basis of the making of a special leave application to the High Court. The principles were set out by Brennan J (as he then was) in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd No. 1

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 Tate & Tate

Details

AGLC: Tate & Tate [2003] FamCA 113
Case: [2003] FamCA 113
Decision Date: 20 February 2003

CaseChat Overview and Summary

The Full Court of the Supreme Court of Western Australia heard an appeal concerning a dispute between Tate & Tate and another party, Tate & Tate. The precise nature of the dispute is not detailed in the provided text, but it was brought before the Full Court for determination.

The central legal issues before the Full Court revolved around the interpretation and application of relevant legal principles to the facts of the dispute between the parties. The court was required to consider the specific legal arguments presented by Tate & Tate and the opposing party to reach a decision.

The judgment of Nicholson CJ, Kay and Monteith JJ addressed the legal questions raised by the appeal. Their Honours' reasoning and the legal principles applied would have guided their determination of the case. The specific outcome or final orders made by the court are not provided in the excerpt.

Orders