Baker and Green and Kettle (No. 4)

[2007] FamCA 1654

FAMILY COURT OF AUSTRALIA

BAKER & GREEN & KETTLE  (NO. 4) [2007] FamCA 1654

FAMILY LAW – ORDERS – Stay application

APPLICANT:	mR KETTLE
RESPONDENT:	mS BAKER
2ND RESPONDENT:	MS GREEN

FILE NUMBER: (P)BRF (P)BRF 2360
1456 of of 2002 2001

DATE DELIVERED: 31 October 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: O'REILLY J

HEARING DATE: 31 October 2007

REPRESENTATION

MS BAKER X Lawyers

MS GREEN X Lawyers

MR KETTLE Appeared in person

THE TRUSTEE Mr Sheehy

ORDERS

1. Mr Kettle’s applications in each matter for the reinstatement of Appeals NA2 and NA3 of 2007 and NA19 and NA20 of 2007 are referred to the Honourable Justice May at 10am on 26 November 2007.

2. Mr Kettle’s applications for a stay of the orders made by the Honourable Justice Bell on 24 November 2006 and consequential orders pending the determination of those appeals are dismissed.

3. Mr Kettle’s applications for a variation of paragraph 9 of the orders made by the Honourable Justice O’Reilly on 7 September 2007 is dismissed.

4. Ms Baker’s and Ms Green’s applications for costs are dismissed.

NOTATIONS:

1. On 31 October 2007 the Regional Appeals Registrar notified Mr Kettle by letter that his applications for the reinstatement of Appeals NA2 and NA3 of 2007 and NA19 and NA20 of 2007 already are listed for a procedural hearing before the Honourable Justice May at 10am on 26 November 2007.

2. The orders and reasons for judgment of 14 and 15 June 2007 and 7 September 2007 are referred to.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Justice O’Reilly delivered this day will for all publication and reporting purposes be referred to as Baker & Kettle, Green & Kettle.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF2360 of 2002 and BRF1456 of 2001

MR KETTLE

Applicant

And

MS BAKER AND MS GREEN

Respondents

REASONS FOR JUDGMENT

EX TEMPORE

1. There are further tandem applications in a case filed by Mr Kettle on 24 October 2007, one against Ms Baker and one against Ms Green.

Reinstatement 

1. First, Mr Kettle seeks that his four appeals, namely Appeals NA2 and NA3 of 2007 and NA19 and NA20 of 2007 be reinstated in the Appeals List.  All of those appeals were against orders made by the Honourable Justice Bell. As noted in my reasons for judgment of 14 and 15 June 2007, pars 15-18, those appeals were deemed abandoned pursuant to Rule 22.56 of the Family Law Rules 2004 (the Rules). 

2. I have been advised by the Associate to the Honourable Justice Warnick that the practice in the Northern Appeals Registry is for applications for the reinstatement of appeals (see Rule 22.57) to be listed before an Appeal Division Judge.  I had therefore proposed to refer par 1 of each of Mr Kettle's applications to the Northern Appeals Registrar for listing before an Appeal Division Judge.

3. However, it appears that the Northern Appeals Registrar already has corresponded with Mr Kettle by letter of today's date, 31 October 2007, referring to the applications to reinstate the appeals and advising that they are listed for a procedural hearing before the Honourable Justice May  at 10 am on 26 November 2007. 

4. It is therefore appropriate that I refer the applications for reinstatement to her Honour, which I will do.

Stay

1. Secondly, Mr Kettle seeks a stay of the orders made in each matter by the Honourable Justice Bell on 24 November 2006, and by me on 7 September 2007 as orders consequential to those orders, until the determination of the four appeals (that is, the appeals against the orders of the Honourable Justice Bell). Rule 22.12 of the Rules provides that if an appeal has been started or a party has applied for permission to appeal a party may apply for a stay of the order to which the appeal or the application for permission to appeal relates.

2. However, currently there are no appeals on foot and no applications for permission to appeal out of time, but rather applications for the reinstatement of the appeals.  It appears to me that unless and until the appeals are reinstated then Rule 22.12 has no application, so that presently I have no power to grant a stay of the orders.  It follows, from what I have said, that the applications for a stay presently must be dismissed, and I will dismiss them.

3. The stay applications are sought on the basis of a proviso that Mr Kettle pay to Ms Baker and Ms Green the amount of administratively assessed child support until the determination of the four appeals.  However, that does not alter the legal position as I have stated it.

4. Rule 22.12 requires that an application for a stay must be made to the Judge who made the order under appeal. A note to Rule 22.12 provides that an application for a stay may be made to another Judge if the Judge who made the order is unavailable. On 29 May 2007 the Honourable Justice Bell disqualified himself from further involvement in these matters. The applications for a stay were thus listed before me by the Honourable Justice Carmody’s direction.

5. In all of the circumstances, if the appeals by order of an Appeal Division Judge are reinstated, it may be appropriate that any further stay applications, at least in relation to the four appeals against the orders of the Honourable Justice Bell, be made to the an Appeal Division Judge.

6. For my part, already now I have dismissed three sets of stay applications against the Honurable Justice Bell’s orders.  The earlier dismissal orders were made on 14 June 2007 and 7 September 2007.   See the reasons for judgment 14 and 15 June 2007, pars 24-29; and the reasons for judgment 7 September 2007, par 2.

7. I would emphasise that Mr Kettle has not sought any stay of the orders which I made on 7 September 2007 pending the determination of any appeal (if instituted) against those orders.  Properly, if any competent appeal against those orders be instituted, then any consequent stay applications should be listed before me.

Audio tapes

1. Thirdly, Mr Kettle seeks that par 9 of the orders I made on 7 September 2007 be varied so that the audio CDs, which par 9 authorises him to purchase by arrangements made between the Regional Registry Manager of the Brisbane Registry of the Court and the National Transcription Service (NTS), may be purchased by Mr Kettle directly from NTS rather than through arrangements between the Regional Registry Manager and NTS.

2. As I explained however in argument this Court's jurisdiction is that given to it by Parliament.  The Court does not have jurisdiction, and I do not have power, to order or to “authorise” NTS to do anything.  See also par 2 of the orders I made on 14 June 2007; the reasons for judgment 14 and 15 June 2007, pars 30-38, in particular par 33; and the reasons for judgment 7 September 2007, par 3.

3. It follows that the third part of each of Mr Kettle’s applications must also be dismissed.

Costs

1. Application is made by Ms E, Solicitor, for Ms Baker and Ms Green, that Mr Kettle pay their costs of and relating to Mr Kettle's applications with which I have dealt today. 

2. Ms E seeks that the amount of costs be $270 all up, reflecting two hours professional work over both the Baker and Green matters or, broken down further, about 30 minutes in Court and one and one‑half hours preparation time. 

3. She refers to the relevant matters in s 117(1) of the Act including the circumstances that Mr Kettle has been unsuccessful in the applications; that based on the well understood history of the matter he has the financial capacity to pay a costs order in that sum; and that in particular as this is the third time Mr Kettle has asked for a stay of the Honourable Justice Bell's orders, stays already having been refused by me on 14 June 2007 and on 7 September 2007, his conduct is a justifying circumstance to take the matter outside s 117(1) of the Act, which provides that subject to s 117(2) each party should bear his or her own costs, and to enliven the discretion in s 117(2) to make a costs order.  See Penfold v Penfold (1980) CLR 311 of 385.

4. However, as is plain from the reasons for judgment which I gave today in relation to the first part of Mr Kettle's applications, it is unfortunate that this matter was listed before me today, where it appears now evident that at all times it ought to have been listed only before a Judge of the Appeals Division which, I note by exhibit 1, in fact now has been done by listing before the Honourable Justice May on 26 November 2007.  In these circumstances, Mr Kettle candidly submitted against the applications for costs that as a litigant he has the right to have the applications heard in the “right sequence”, not in the “wrong sequence”, and to have them listed before the appropriate judicial officer.  There is compelling logic in Mr Kettle's submission and, in my view, it would be an inappropriate use of the discretion under s 117, despite the matters relied upon by Ms E, to order in the circumstances that Mr Kettle pay Ms Baker’s and Ms Green's costs of today.

5. The applications for costs are dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O'Reilly

Associate: 

Date: