UNDERWOOD & UNDERWOOD

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.