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Taylor v Crossman

Taylor v Crossman

Case [2011] FCAFC 139 7 November 2011

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FEDERAL COURT OF AUSTRALIA
Taylor v Crossman [2011] FCAFC 139

Citation: Taylor v Crossman [2011] FCAFC 139

Appeal from: Crossman v Taylor (No 3) [2011] FCA 734

Parties: BRENDAN TAYLOR v LYNETTE MARIE CROSSMAN

File number: SAD 169 of 2011

Judges: LANDER, COWDROY AND FLICK JJ

Date of judgment: 7 November 2011

Catchwords: PRACTICE AND PROCEDURE – appeal to Full Court – alleged contravention of freezing orders – interlocutory application to dismiss or permanently stay appeal – interlocutory application heard by Full Court – “appropriate” to do so – appeal said to be an abuse of process – application dismissed

Legislation: Federal Court of Australia Act1976 (Cth) ss 25, 31A

Cases cited: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27, 226 CLR 256, considered
Crossman v Taylor (No 3) [2011] FCA 734, cited
Jones v Dunkel [1959] HCA 8, 101 CLR 298, considered
Morley v Australian Securities and Investments Commission [2010] NSWCA 331, 247 FLR 140, cited
Pacific Publications Pty Limited v Next Publishing Pty Limited [2005] FCA 625, 222 ALR 127, cited
Rogers v The Queen (1994) 181 CLR 251, considered
Smart Company Pty Ltd v Clipsal Australia Pty Ltd (No 6) [2011] FCA 419, referred to

Date of hearing: 28 October 2011

Place: Adelaide

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 42

Counsel for the Appellant: Mr M Hoile

Solicitor for the Appellant: Starke Lawyers

Counsel for the Respondent: Mr R J Whitington QC with Mr B J Doyle

Solicitor for the Respondent: Sykes Bidstrup Barristers and Solicitors

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 169 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
BRENDAN TAYLOR
Appellant

AND:
LYNETTE MARIE CROSSMAN
Respondent

JUDGES:

LANDER, COWDROY AND FLICK JJ

DATE OF ORDER:

7 NOVEMBER 2011

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.The Interlocutory Application filed on 30 August 2011 is dismissed.
2.The application for security for costs is dismissed.
3.The Applicant on the Interlocutory Application, the Respondent in the appeal, is to pay the costs of the Respondent, the Appellant in the appeal, of the Interlocutory Application.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 169 of 2011

ON APPEAL FROM THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
BRENDAN TAYLOR
Appellant

AND:
LYNETTE MARIE CROSSMAN
Respondent

JUDGES:

LANDER, COWDROY AND FLICK JJ

DATE:

7 NOVEMBER 2011

PLACE:

ADELAIDE

REASONS FOR JUDGMENT
THE COURT:

On 29 June 2011 the primary Judge, Besanko J, delivered a judgment in this proceeding: Crossman v Taylor (No 3) [2011] FCA 734. Orders were made on 11 July 2011 ordering Mr Brendan Taylor to pay Ms Lynette Crossman damages in the sum of $955,305.76. A costs order was also made against Mr Taylor. “Freezing Orders” had previously been made by the…

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 Taylor v Crossman

Details

AGLC: Taylor v Crossman [2011] FCAFC 139
Case: [2011] FCAFC 139
Decision Date: 7 November 2011

CaseChat Overview and Summary

In the Full Court of the Federal Court of Australia, the case of Taylor v Crossman was heard. The primary dispute in this case involved an appeal by the defendant, Crossman, against an earlier decision made by the primary judge, Taylor. The appeal concerned an alleged contravention of certain freezing orders and the associated legal consequences. The Full Court was tasked with deciding whether the appeal itself constituted an abuse of process, which would warrant its dismissal.

The court needed to address whether it was appropriate to dismiss or permanently stay the appeal and whether the appeal represented an abuse of the legal process. Additionally, the court had to consider whether it was appropriate to grant an interlocutory application for security for costs, given the circumstances of the case. The legal issues primarily revolved around the procedural fairness and the potential abuse of the appellate process.

In determining these issues, the Full Court held that the appeal was not an abuse of process and that the respondent's interlocutory application for dismissal or permanent stay of the appeal was not appropriate. The Full Court also found that granting security for costs was not warranted in the circumstances. Consequently, the Full Court dismissed all the applications brought forth by Crossman. The court further ruled that the respondent, who was the appellant in the main appeal, was to cover the costs incurred by the applicant in relation to the interlocutory application.

The orders made by the court were clear and straightforward. The Interlocutory Application filed on 30 August 2011 was dismissed. Additionally, the application for security for costs was also dismissed. The respondent, who had filed the Interlocutory Application and was the respondent in the appeal, was ordered to pay the costs of the appeal to the appellant, who was the respondent in the Interlocutory Application. This decision underscored the importance of procedural fairness and the judicious use of interlocutory applications in the context of appeals.

Orders

Orders of the court

1. The Interlocutory Application filed on 30 August 2011 is dismissed.

2. The application for security for costs is dismissed.

3. The Applicant on the Interlocutory Application, the Respondent in the appeal, is to pay the costs of the Respondent, the Appellant in the appeal, of the Interlocutory Application.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The application for security is dismissed.CONCLUSIONS The application for a dismissal or permanent stay of the appeal is to be dismissed. So, too, is the application for security for costs. It follows that Ms Crossman is to pay the costs of her unsuccessful Interlocutory Application.ORDERSThe Orders of the Court are:1.The Interlocutory Application filed on 30 August 2011 is dismissed.2.The application for security for costs is dismissed.3.The Applicant on the Interlocutory Application, the Respondent in the appeal, is to pay the costs of the Respondent, the Appellant in the appeal, of the Interlocutory Application.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Taylor v Crossman [2011] FCAFC 139

Most Recent Citation

Unit Trend Services Pty Ltd v Commissioner of Taxation [2013] FCA 333

Cases citing this decision · 4 of 4 shown

Starkey on behalf of the Kokatha People v State of South Australia
[2016] FCA 1577 Para 8

…ent has occurred when the Coram, that is to say the particular judges who will hear the appeal, have been identified. See also Taylor v Crossman [2011] FCAFC 139 at [7]‑[8]. It is not necessary to consider this question in any detail presently, as the members of the Full Court who are to hear the appeals in the pre…
Crossman v Taylor
[2013] FCA 537 Para 14

…ssed by the Full Court, although the Full Court indicated that the sale of the houseboats “certainly invites careful scrutiny”: Taylor v Crossman [2011] FCAFC 139 at [31].…
Naudi, a joint and several trustee of the property of Taylor (a Bankrupt) v Pee Vee Nominees Pty Ltd
[2013] FCA 536 Para 17

…The application was dismissed by the Full Court on 7 November 2011: Taylor v Crossman [2011] FCAFC 139. However, the Full Court indicated that the sale of the houseboats “certainly invites careful scrutiny”: at [31].…
Unit Trend Services Pty Ltd v Commissioner of Taxation
[2013] FCA 333 Para 6

…stance adopted by the parties. It was referred to in passing and in respect of a different type of application by the Full Court in Taylor v Crossman [2011] FCAFC 139 at [7] where the court observed: what may amount to a proceeding being ‘assigned to a Full Court’ may presently be left to one side. It would, howeve…

View all 4 citing cases →

Cases cited in this decision · 10 of 10 shown

Crossman v Taylor (No 3)
[2011] FCA 734 Para 1

…On 29 June 2011 the primary Judge, Besanko J, delivered a judgment in this proceeding: Crossman v Taylor (No 3) [2011] FCA 734. Orders were made on 11 July 2011 ordering Mr Brendan Taylor to pay Ms Lynette Crossman damages in the sum of $955,305.76. A costs order was also made against Mr Taylor. “ Freezing Orders…
Smart Company Pty Ltd (In Liquidation) v Clipsal Australia Pty Ltd (No 6)
[2011] FCA 419 Para 15

…Reliance was also placed upon the observations in Smart Company Pty Ltd v Clipsal Australia Pty Ltd (No 6) [2011] FCA 419 at [562] that the circumstances in s 31A(3) of the Federal Court of Australia Act would “ ordinarily only come about if the Court were of the opinion that the applicant’s failure to comply wit…
Morley v Australian Securities and Investments Commission
[2010] NSWCA 331 Para 6

…e up any deficiency of evidence ”: (1959) 101 CLR 298 at 312 per Menzies J. See also: Morley v Australian Securities and Investments Commission [2010] NSWCA 331 at [634], 247 FLR 140 at 155 per Spigelman CJ, Beazley and Giles JJA. Where there is an explanation for the absence of a witness, the principle in Jones v…
Batistatos v Roads and Traffic Authority of New South Wales
[2006] HCA 27 Para 14

…This passage was cited with approval by Gleeson CJ, Gummow, Hayne and Crennan JJ in Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 at [15], 226 CLR 256 at 267. Their Honours in that case further addressed the circumstances which may constitute an abuse of process as follows: [6] Accord…
Pacific Publications Pty Ltd v Next Publishing Pty Ltd
[2005] FCA 625 Para 6

…for the absence of a witness, the principle in Jones v Dunkel is not applicable: Pacific Publications Pty Limited v Next Publishing Pty Limited [2005] FCA 625 at [111], 222 ALR 127 at 153 to 154 per Tamberlin J. In the present proceeding, it was up to Ms Crossman to make out her case of an abuse of process and it…
Rogers v The Queen
[1994] HCA 42 Para 14

…Any of these three findings of fact was said on behalf of Ms Crossman to fall within the following observations of McHugh J in Rogers v The Queen (1994) 181 CLR 251 at 286: Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court’s procedu…
Walton v Gardiner
[1993] HCA 77 Para 14

…ds Police [[1982] AC 529 at 536] Lord Diplock used the term “inherent power” rather than “inherent jurisdiction”. In Walton v Gardiner [(1993) 177 CLR 378 at 393], the majority, Mason CJ, Deane and Dawson JJ, accepted as correct the passage in Hunter in which Lord Diplock spoke of “the inherent power which any court…
Jones v Dunkel
[1959] HCA 9 Para 6

…Although fleeting reliance was placed on behalf of Ms Crossman upon Jones v Dunkel [1959] HCA 8, 101 CLR 298 at 308, such reliance was (with respect) misplaced. In an oft-repeated passage, Kitto J there held: … any inference favourable to the plaintiff for which there was ground in the evidence might be more c…
Jones v Dunkel
[1959] HCA 8 Para 6

…Although fleeting reliance was placed on behalf of Ms Crossman upon Jones v Dunkel [1959] HCA 8, 101 CLR 298 at 308, such reliance was (with respect) misplaced. In an oft-repeated passage, Kitto J there held: … any inference favourable to the plaintiff for which there was ground in the evidence might be more co…
[1982] AC 529
[1982] AC 529 Para 14

…ed the circumstances which may constitute an abuse of process as follows: [6] Accordingly, in Hunter v Chief Constable of West Midlands Police [[1982] AC 529 at 536] Lord Diplock used the term “inherent power” rather than “inherent jurisdiction”. In Walton v Gardiner [(1993) 177 CLR 378 at 393], the majority, Ma…

Legislation cited in this decision · 2

Federal Court of Australia Act 1976 (Cth)
25, 31A 3 mentions (from Para 6)
Federal Court Rules 2011 (Cth)
1 mention

Citation:		Taylor v Crossman [2011] FCAFC 139
Appeal from:		Crossman v Taylor (No 3) [2011] FCA 734
Parties:		BRENDAN TAYLOR v LYNETTE MARIE CROSSMAN
File number:		SAD 169 of 2011
Judges:		LANDER, COWDROY AND FLICK JJ
Date of judgment:		7 November 2011
Catchwords:		PRACTICE AND PROCEDURE – appeal to Full Court – alleged contravention of freezing orders – interlocutory application to dismiss or permanently stay appeal – interlocutory application heard by Full Court – “appropriate” to do so – appeal said to be an abuse of process – application dismissed
Legislation:		Federal Court of Australia Act1976 (Cth) ss 25, 31A
Cases cited:		Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27, 226 CLR 256, considered Crossman v Taylor (No 3) [2011] FCA 734, cited Jones v Dunkel [1959] HCA 8, 101 CLR 298, considered Morley v Australian Securities and Investments Commission [2010] NSWCA 331, 247 FLR 140, cited Pacific Publications Pty Limited v Next Publishing Pty Limited [2005] FCA 625, 222 ALR 127, cited Rogers v The Queen (1994) 181 CLR 251, considered Smart Company Pty Ltd v Clipsal Australia Pty Ltd (No 6) [2011] FCA 419, referred to
Date of hearing:	28 October 2011
Place:	Adelaide
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	42
Counsel for the Appellant:	Mr M Hoile
Solicitor for the Appellant:	Starke Lawyers
Counsel for the Respondent:	Mr R J Whitington QC with Mr B J Doyle
Solicitor for the Respondent:	Sykes Bidstrup Barristers and Solicitors

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 169 of 2011

BETWEEN:	BRENDAN TAYLOR Appellant
AND:	LYNETTE MARIE CROSSMAN Respondent

JUDGES:	LANDER, COWDROY AND FLICK JJ
DATE OF ORDER:	7 NOVEMBER 2011
WHERE MADE:	ADELAIDE

JUDGES:	LANDER, COWDROY AND FLICK JJ
DATE:	7 NOVEMBER 2011
PLACE:	ADELAIDE