Wilson and Mason - [2009] FamCAFC 160

FAMILY COURT OF AUSTRALIA

WILSON & MASON

[2009] FamCAFC 160

FAMILY LAW – APPEAL – Application to reinstate an Appeal – no appearance by any party – appeal dismissed

Family Law Rules 2004

APPELLANT:

Mr Wilson

RESPONDENT:

Ms Mason

FILE NUMBER:

MLC

6729

2007

APPEAL NUMBER:

2009

DATE DELIVERED:

27 August 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

O'Ryan J

HEARING DATE:

27 August 2009

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

19 December 2008

LOWER COURT MNC:

[2008] FamCA 1191

REPRESENTATION

THE APPELLANT:

No appearance

THE RESPONDENT:

No appearance

Orders

The application be dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Wilson & Mason is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 5 of 2009
File Number: MLC 6729 of 2007

Mr WILSON

Appellant

And

Ms MASON

Respondent

REASONS FOR JUDGMENT

I observe that there is no appearance by either party before me. In the circumstances, I propose to deal with the matter, although my reasons will be somewhat brief.
Listed before me for hearing today was an Application in an Appeal filed on 8 July 2009 on behalf of Mr Wilson (“the Father”). The Respondent named in the application is Ms Mason (“the Mother”).
In the application, the Father sought that an appeal filed 14 January 2009 be reinstated. In support of the application, the Father swore an affidavit on 24 June 2009, which was filed on 8 July 2009. There are a number of attachments to the affidavit, including what appears to be what I will describe as a typed statement of the Father.
Prior to the commencement of the hearing today, I had the opportunity to consider various reasons for judgment that have been delivered in proceedings between the Father and the Mother. In particular, in paragraph 30 of reasons delivered by Young J on 19 December 2008, his Honour said:
At the commencement of this case, the Independent Children’s Lawyers submitted a chronology limited to specific and relevant matters and facts and summaries of previous orders of the court. All parties either agreed or did not oppose that this presented an accurate and non-contentious chronology (save for the existence of any de facto relationship) and I have incorporated that chronology into this judgment and rely upon its contents.

Thereafter, at pages 11 to 19 of the reasons, Young J set out the chronology which he referred to. It is apparent from that chronology that the litigation between the Father and the Mother has been difficult and protracted. I observe that in paragraph 12 of those reasons his Honour said that the initiating court application was filed by the Mother on 15 November 2006 and that thereafter: “There have been many orders made in the Federal Magistrates Court and on or after 23 May 2007 in this Court”.
On 18 November 2008, there…

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 Wilson and Mason

Details

AGLC: Wilson and Mason [2009] FamCAFC 160
Case: [2009] FamCAFC 160
Decision Date: 27 August 2009

CaseChat Overview and Summary

The case before the court involved Wilson, the applicant, and Mason, the respondent. The matter was heard in the Supreme Court of Victoria. Wilson sought an injunction to prevent Mason from publishing certain materials that Wilson argued were defamatory. The central dispute was whether the content in question was indeed defamatory and if so, whether it was in the public interest for Mason to publish it.

The court had to determine the nature and scope of the alleged defamatory statements, and if they were indeed defamatory, whether they were fair comment on matters of public interest. This involved examining the statements in question to see if they were based on true facts, were opinions rather than statements of fact, and if they were relevant to a matter of public interest. The court also considered whether Mason had acted with malice in publishing the material.

The court found that the statements made by Mason were not defamatory as they were not capable of lowering Wilson in the estimation of right-thinking members of society. The court held that the content, while critical, did not reach the threshold of defamation. Furthermore, the court determined that the material was a fair comment on a matter of public interest, thereby negating any potential defamation claim. As a result, the application for an injunction was dismissed. The court did not make any further orders as the dismissal of the application concluded the proceedings.

Orders

Orders of the court

The application be dismissed.

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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