Aldam and Cesari (No. 3)
[2020] FamCA 849
•6 October 2020
FAMILY COURT OF AUSTRALIA
| ALDAM & CESARI (NO. 3) | [2020] FamCA 849 |
| FAMILY LAW – STAY APPLICATION PENDING APPEAL – no basis demonstrated – application refused. |
| Family Law Rules 2004 (Cth) |
| Aldam & Cesari [2020] FamCA 54 Aldam & Cesari (No. 2) [2020] FamCA 732 Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Commissioner of Taxation (Cth) v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 Jackson & Balen [2009] FamCAFC 131 Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 |
| APPLICANT: | Mr Aldam |
| RESPONDENT: | Mr Cesari |
| FILE NUMBER: | MLC | 9029 | of | 2018 |
| DATE DELIVERED: | 6 October 2020 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Wilson J |
| HEARING DATE: | 6 October 2020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms C. Conlan |
| SOLICITOR FOR THE APPLICANT: | Blackwood Family Lawyers |
| COUNSEL FOR THE RESPONDENT: | Not applicable |
| SOLICITOR FOR THE RESPONDENT: | Not applicable |
Orders
I dismiss the respondent’s stay application filed 2 October 2020.
If any costs application is made by or on behalf of Mr Aldam then –
a)Mr Aldam’s written submissions must be filed and served by 4pm on 13 October 2020; and
b)Mr Cesari’s written submissions must be filed and served by 4pm on 20 October 2020.
Judgment on the question of costs of this stay application will be determined on the papers.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Aldam & Cesari has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 9029 of 2018
| Mr Aldam |
Applicant
And
| Mr Cesari |
Respondent
REASONS FOR JUDGMENT
On 4 September 2020 I handed down reasons for judgment in this case.[1]
[1]Aldam & Cesari (No. 2) [2020] FamCA 732.
Since then the respondent has appealed. He has sought a stay of the orders I made requiring property to be sold in default of agreement.
One of the major reasons underpinning the orders I made was the serious deficiencies in the disclosure the respondent made.
The Family Law Rules 2004 require the respondent to apply to the judge who made the orders for a stay of those orders.
Here, the respondent brought his stay application by application in a case sealed by the court on 2 October 2020. He sought a stay of all orders made by me on 4 September 2020.
On 2 October 2020 the respondent made a very short affidavit in support of his stay application. It is utile to record paragraphs 3 to 7 of his affidavit in support. Those paragraphs read as follows –
3.I believe that a stay of the orders should be granted based on the reasons for appeal, the evidence for the appeal and furthermore based on the fairness of the actual orders.
4.The basis of the appeal is that the trial judge failed to take into account material consideration which ultimately brought his Honour to the decision, which is plainly wrong.
5.The learned trial judge placed too much weight on particular matters and too little on other matters which ultimately resulted in his Honour not understanding or becoming confused as to the actual facts.
6.Due to the incorrect findings and the fact that during the trial certain evidence was not submitted. Despite my timely request the learned trial judge evidently used his discretionary evaluation for the matter, instead of affording procedural fairness to the respondent by way of allowing my concern that all the factual evidence was not allowed at trial due to it being deemed irrelevant by the applicant legal representative.
7.Failure to allow an immediate stay on the orders will have consequence by way of rendering the appellant bankrupt.
Very little insight was gained from that affidavit into the particular reason for the appellant’s urgent request for a stay. He lightly hinted at bankruptcy. The appellant submitted that unless a stay were granted his appeal will be rendered nugatory. He gave no factual basis for so submitting. Ms Conlan said her instructor had conducted a bankruptcy search and had seen nothing to indicate some pending application involving the appellant. He made oblique references to my having allegedly failed to consider certain unidentified matters. He made equally oblique references to my allegedly having become confused about certain issues.
A fair reading of his affidavit in support of the stay application provided next to no useful guidance about the legal and factual matters on which his stay application was premised.
Recognising that the appellant is a lay person whose command of the intricacies of family law were not at all well developed at trial, I am willing to proceed on this stay application in a benevolent manner conferring on him the most favourable construction of the matters he has raised. Yet even by proceeding on that basis, his contentions in his affidavit seem to amount to an unparticularised grievance that his version of events at trial was not accepted. To say that the trial judge “got it wrong” without more is not a recognised legal springboard from which to launch an appeal.
The appellant’s notice of appeal was five paragraphs in length. None was the subject of any detail. It is utile to record their terms in precise form as follows –
1.The learned trial judge (The Honourable Justice Wilson) acted upon a wrong principle where there is a miscarriage of justice by way of mistake of a facts.
2.The learned trial judge at first instance erred and his Honour's discretion miscarried in confining the scope of his enquiry based on a lack of factual evidence from one party and giving credit to the other.
3.The learned trial judge failed to afford the appellant procedural fairness.
4.The learned trial judge’s decision was ‘plainly wrong’.
5.The learned trial judge placed too much weight on particular matters and too little on other matters which ultimately resulted in his Honour not fully understanding and becoming confused as to the actual facts.
He sought orders setting aside the entirety of the orders I made and remitting the case for rehearing. The appellant asked for the hearing of his stay application to be heard urgently which I did, returnable today. Prior to the hearing both parties filed written submissions on which they relied.
On a stay application two reasonably recent decisions of the appeal division of this court have offered helpful comments on the approach to be followed when a party seeks a stay pending appeal. Those decisions are Aldridge & Keaton[2] and Jackson & Balen.[3]The more expansive reasoning was given in Jackson & Balen, which warrants repeating here as follows –
[2] [2009] FamCAFC 106.
[3] [2009] FamCAFC 131.
28.The principles to be applied in hearing a stay application pending an appeal are well settled (see Federal Commissioner of Taxation v Myer Emporium Ltd [No. 1] (1986) 160 CLR 220 at 222; Alexander v Cambridge Credit CorporationLtd (1985) 2 NSWLR 685; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681). Those authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following:
· the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
· a person who has obtained a judgment is entitled to the benefit of that judgment;
· a person who has obtained a judgment is entitled to presume the judgment is correct;
· the mere filing of an appeal is insufficient to grant a stay;
· the application must be bona fides;
· a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
· a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay;
· some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case.
Before descending to a consideration of each element, it must be recorded that the party in whose favour the judgment appealed against has been given is entitled to presume that the judgment is correct.
Next, it is beyond argument that the mere fact of an appellant filing a notice of appeal does not operate as a stay of the impugned judgment.
Next, while the appellant need not demonstrate the existence of special or exceptional circumstances before a stay is ordered, nevertheless the appellant must establish a proper basis for the ordering of the stay and the application for the stay must be bona fide.
In Jackson & Balen it was held that a preliminary assessment must be undertaken of the grounds of appeal to ascertain whether any have merit. To that I now turn.
Ground one contains an assertion that I “acted upon a wrong principle where there is a miscarriage of justice by way of mistake of a facts” (sic). It seems the appellant was endeavouring to convey that in some unidentified way I –
a)acted on a wrong principle, yet he did not say how;
b)created a miscarriage of justice, yet he did not say what; and
c)mistook facts, yet he did not say which.
Without details of each it is near impossible to assess the merits of any of those grounds. It fell to the appellant to make good his grounds. He failed to do so in relation to ground one.
Ground two contained an assertion that the exercise of the discretion conferred upon me miscarried “in confining the scope of his enquiry based on a lack of factual evidence from one party and giving credit to the other.” It is well nigh impossible to understand the real import of this ground. Aside from the fact that it is near meaningless, this ground does not go any meaningful distance in demonstrating the existence of a proper ground for the grant of a stay.
Ground three contains an assertion that I somehow failed to afford the appellant procedural fairness He does not say why. He does not give any specific illustration of the way I allegedly did as he asserts. To the contrary. The trial was conducted with exquisite fairness to the appellant. He was permitted to rely on evidence not properly adduced – of course, with the agreement of the solicitor for the applicant – and no disadvantage was occasioned thereby to the appellant. I do not accept that ground three has merit.
Ground four contains the glib, if not rude, contention that my decision was plainly wrong. The appellant failed to identify which of the several hundred paragraphs of reasons were allegedly “plainly wrong” or which of the very many decided cases that were applied to the facts of the case were allegedly “plainly wrong.” I am not willing to accept from a layman a contention expressed in such vague and legally imprecise terms that my decision was wrong at all, let alone with the adjectival reference allegedly injected with supererogation. This ground was devoid of merit.
Ground five was nonsensical. I reject it.
None of the five grounds of appeal are meritorious. None of them relate to the consequence of defective disclosure. No utility is to be gained by the grant of the stay.
Let me now address the bona fides of the appellant in bringing this stay application. To say that the appellant has participated in this litigation only on his terms is an understatement. In a costs judgment[4] prior to my conducting the trial I exposed the factual situation leading up to the false starts when this case was listed first before me as an undefended trial. The appellant conducted the case for himself. He had no real appreciation of the evidence he needed to adduce or the documents he needed to disclose. Of course, as a litigant in person some latitude needed to be extended to him. His disclosure remained poor. I canvassed in my reasons following the trial those deficiencies in the appellant’s disclosure. He now appeals. That is his right. However, in my view he has behaved in such a way in the conduct of this case that it may fairly be said that he is engaging in “tactics” to stave off the day when judgment falls upon him. I entertain no serious assessment that he is appealing on forensically sound grounds or on grounds legally maintainable. Instead he is further delaying the proper outcome of this case.
[4]Aldam & Cesari [2020] FamCA 54.
In my view the appellant’s bona fides of this application are to be seriously doubted.
I dismiss this stay application. If any costs application is made by or on behalf of Mr Aldam then –
a)Mr Aldam’s written submissions must be filed and served by 4pm on 13 October 2020; and
b)Mr Cesari’s written submissions must be filed and served by 4pm on 20 October 2020.
Thereafter I will decide the question of costs of this stay application on the papers.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson delivered on 6 October 2020.
Associate:
Date: 6 October 2020
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