UNDERWOOD & UNDERWOOD - [2017] FamCAFC 267

FAMILY COURT OF AUSTRALIA

UNDERWOOD & UNDERWOOD

[2017] FamCAFC 267

FAMILY LAW – APPEAL – INTERIM ANTI-SUIT INJUNCTION – Where the applicant wife seeks leave to appeal against the order granting an interim injunction enjoining her from continuing to seek any orders in proceedings commenced by her in the United States of America (“USA”) – Where no submissions were made by the wife at the original hearing as to the form of the proposed injunction or the prejudice she would suffer by the granting of the interim injunction – Where the point in the current case is that there has not yet been a hearing of the competing applications in relation to the substantive matters, and the primary judge was just looking to preserve the subject matter of the proceedings until the hearing could take place – Where on the face of the material before the primary judge there were proceedings in Australia and the USA between the same parties involving the same controversy the continuation of one or the other of which was prima facie vexatious or oppressive in accordance with the test laid down in Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538 – Where the approach adopted by the primary judge was therefore appropriate – Where, apart from the costs of returning to court to seek a variation or setting aside of the interlocutory order, the wife could point to no other prejudice – Leave to appeal refused

FAMILY LAW – COSTS – Where the husband sought an order that the wife pay his costs of and incidental to the application, but that payment should be delayed until finalisation of the proceedings – Where the wife has been wholly unsuccessful in that leave to appeal has been refused – Where the appeal was one that should never have been brought – Costs ordered as sought

Family Law Act 1975 (Cth)

Family Law Regulations 1984 (Cth)

CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345
In Re The Will of FB Gilbert (dec) (1946) 46 SR (NSW) 318
Medlow & Medlow (2016) FLC 93-692
Voth v Manildra Flour Mills Pty Ltd (1990) 171 CLR 538

APPLICANT:

Ms Underwood

RESPONDENT:

Mr Underwood

FILE NUMBER:

SYC

1170

2017

APPEAL NUMBER:

2017

DATE DELIVERED:

15 December 2017

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Sydney

JUDGMENT OF:

Strickland, Aldridge & Carew JJ

HEARING DATE:

3 November 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

10 April 2017

LOWER COURT MNC:

[2017] FamCA 378

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Elliot SC

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

COUNSEL FOR THE RESPONDENT:

Mr Beaumont SC with Mr Hand

SOLICITOR FOR THE RESPONDENT:

Pearson Emerson Meyer Family Law

Orders

The Application to adduce further evidence in the appeal be dismissed.
Leave to appeal be refused.
The wife pay the costs of the husband of and incidental to the application for leave to appeal with such costs to be assessed in default of…

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

AGLC: UNDERWOOD & UNDERWOOD [2017] FamCAFC 267
Case: [2017] FamCAFC 267
Decision Date: 15 December 2017

CaseChat Overview and Summary

In the matter of Underwood & Underwood, the wife sought leave to appeal against an order granting an interim injunction that restrained her from continuing to pursue proceedings in the United States. The proceedings in Australia and the United States involved the same parties and the same subject matter, raising the issue of whether the continuation of one or the other set of proceedings was vexatious or oppressive. The wife did not make any submissions at the original hearing regarding the form of the injunction or the prejudice she would face if it was granted. The primary judge's decision to grant the injunction was based on the need to preserve the subject matter until the substantive matters could be heard.

The wife's appeal against the interim injunction hinged on the argument that the primary judge's approach was inappropriate because there had not yet been a hearing on the substantive matters. However, the court found that the primary judge's approach was correct, as the proceedings in Australia and the United States between the same parties over the same issue made it prima facie vexatious or oppressive to continue with both sets of proceedings. The wife could not point to any other prejudice apart from the costs of returning to court to seek a variation or setting aside of the interlocutory order. The wife's appeal was dismissed, and the husband was awarded costs for the application.

The court dismissed the wife's application to adduce further evidence in the appeal and refused her leave to appeal. The wife was ordered to pay the husband's costs of and incidental to the application for leave to appeal, with the costs to be assessed in default of agreement and payable within 14 days of the finalisation of all proceedings between the parties in the Family Court of Australia. The form of the order is subject to the entry of the order in the Court's records.

Orders

Orders of the court

The Application to adduce further evidence in the appeal be dismissed.

Leave to appeal be refused.

The wife pay the costs of the husband of and incidental to the application for leave to appeal with such costs to be assessed in default of agreement and payable within 14 days of the finalisation of all proceedings between the parties in the Family Court of Australia.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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