LFDB v SM [2017] FCAFC 178

LFDB v SM [2017] FCAFC 178

The appeal failed because the making and operation of the New Zealand unless order did not render enforcement of the Relevant Judgment contrary to public policy in Australia. LFDB had a reasonable opportunity to be heard but lost it through his own failure to comply with the Unless Order; analogous peremptory orders are known in Australia; differences between New Zealand and Australian procedure do not of themselves engage the public policy exception; and the reasons of Ellis J showed that the New Zealand court did consider material filed by LFDB before he was debarred. The jurisdictional challenge also failed because registration of the New Zealand judgments under the Trans-Tasman...

Jurisdiction
Australia
Judgment Date
15 November 2017
Procedural Posture
Appeal From Dismissal of an Application Under S 72(1) of the Trans Tasman Proceedings Act 2010 (cth) to Set Aside Registration of Judgments of the High Court of New Zealand / Appeal and Interlocutory Application Dated 17 August 2017
Outcome
Appeal dismissed; interlocutory application dated 17 August 2017 dismissed; parties directed to file and serve submissions on costs.
Legal Topics
['registration and Enforcement of New Zealand Judgments' 'public Policy Exception' 'procedural Fairness' 'unless Orders' 'relationship Property' 'de Facto Financial Causes']
['private International Law' 'civil Procedure' 'family Law' 'federal Jurisdiction'] ['registration and Enforcement of New Zealand Judgments' 'public Policy Exception' 'procedural Fairness' 'unless Orders' 'relationship Property' 'de Facto Financial Causes']

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Procedural Posture

Appeal From Dismissal of an Application Under S 72(1) of the Trans Tasman Proceedings Act 2010 (cth) to Set Aside Registration of Judgments of the High Court of New Zealand / Appeal and Interlocutory Application Dated 17 August 2017

Legal Issues

  1. 1 ['Whether enforcement of the Relevant Judgment would be contrary to public policy in Australia under s 72(1)(a) of the Trans-Tasman Proceedings Act 2010 (Cth) because LFDB was debarred from taking further part in the New Zealand proceeding by an unless order.' 'Whether the High Court of New Zealand could make orders effecting a just division of relationship property under the Property (Relationships) Act 1976 (NZ) despite LFDB being debarred from participating.' 'Whether the reasons for the Relevant Judgment failed to consider material filed by LFDB before he was debarred.' 'Whether the Federal Court had jurisdiction to register and enforce the Relevant Judgment and the Costs Judgment, or whether the proceeding was a de facto financial cause within the Family Law Act 1975 (Cth).' 'Whether the appellants should be granted leave to adduce the Joint Memorandum of Counsel as additional evidence on appeal.']

Ratio Decidendi

The appeal failed because the making and operation of the New Zealand unless order did not render enforcement of the Relevant Judgment contrary to public policy in Australia. LFDB had a reasonable opportunity to be heard but lost it through his own failure to comply with the Unless Order; analogous peremptory orders are known in Australia; differences between New Zealand and Australian procedure do not of themselves engage the public policy exception; and the reasons of Ellis J showed that the New Zealand court did consider material filed by LFDB before he was debarred. The jurisdictional challenge also failed because registration of the New Zealand judgments under the Trans-Tasman...

Court Disposition

Appeal dismissed; interlocutory application dated 17 August 2017 dismissed; parties directed to file and serve submissions on costs.

Orders

  • ['The appeal be dismissed.' 'The interlocutory application dated 17 August 2017 be dismissed.' 'Within seven days from the date of this order the parties file and serve any submissions, limited to two pages, as to the terms of the costs order for which they contend.']