BB & Ors & DB

[2005] FamCA 390

[2005] FamCA 390

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT SYDNEY   

Appeal No. EA 18 of 2005
File No. SYF 2622 of 1984

IN THE MATTER OF:

BB

CC

GC

Appellants

- and -

DB

Respondent/Wife

REASONS FOR JUDGMENT

EX TEMPORE

CORAM:	COLEMAN, MAY & BOLAND JJ
DATE OF HEARING:	3 May 2005
DATE OF JUDGMENT:	3 May 2005

APPEARANCES:

Mr Lynch	Of counsel (instructed by HAL Lawyers, 28/193 Macquarie Street, Sydney NSW 2000) appearing on behalf of the appellants
Mr Lloyd	Of counsel (instructed by Stuart & Mills Solicitors, Level 5, 67 Castlereagh Street, Sydney NSW 2000) appearing on behalf of the respondent wife

Name of Appeal  BB & DB

Appeal Number  EA 18 of 2005

Date of Appeal hearing                   3^rd day of May 2005

Date of Judgment  3^rd day of May 2005

Coram  Coleman, May and Boland JJ

Catchwords:               FAMILY LAW – APPLICATION FOR SECURITY FOR COSTS – The application was predicated upon there being fatal defects in the appeal – However, it was conceded that if the appeal was unsuccessful the appellant would be able to meet a costs order – Found that the appeal could potentially raise issues of some complexity and was therefore not doomed to failure – The utility of the appeal could not be determined without hearing the appeal – Application refused.

Application for security for costs dismissed.

Costs reserved to the Full Court hearing the substantive appeal

1. This is an application brought by and on behalf of the respondent wife, to an appeal filed on 23 February 2005 by the estate of her deceased former husband against orders made by Le Poer Trench J, on 27 January 2005.  I incorporate his Honour's orders in these reasons without reading them onto the record. 

2. The Notice of Appeal contains four specific grounds at paragraph 7, page 3.  I incorporate those grounds of appeal in these reasons without reading them on to the record.  The Notice of Appeal also sets out in paragraph 8, albeit in a series of orders sought primarily or in the alternative, orders providing some six possible forms of relief together with a series of four further consequential orders.

3. The background to the proceedings is amply set out for present purposes in the reasons for judgment of the learned trial Judge of 27 January 2005 and I respectfully incorporate that part of his Honour's judgment headed “Background Facts” as part of my reasons without reading those paragraphs onto the record.

4. Learned counsel for the respondent to the appeal, the applicant for orders for security for costs in the terms set out in the application filed on her behalf on 1 March 2005, which terms I incorporate in these reasons without reading them on to the record, has frankly informed the Court that the application for security for costs is brought in reliance upon what are submitted to be a series of fatal defects in the appeal which the estate has instituted.  It was frankly conceded by learned counsel for the applicant wife that there was no issue before this Court that if unsuccessful, as counsel submitted the appeal would inevitably be, the estate could meet an order for costs in the event of such order being made, as in all likelihood would result if the appeal was dismissed.

5. It is appropriate to focus briefly, therefore, on the ground upon which the application was based.  It was submitted succinctly by learned counsel for the applicant wife that there were, in short, four not necessarily mutually exclusive reasons why the appeal was doomed to fail and so doomed on the face of the material presented by the appellant estate.  Those four factors were, firstly, that the appeal had no merit; secondly, that the appeal had no utility; thirdly, that the order had been fully complied with by agreement of both parties; and fourthly, and probably by way of amplification of the absence of utility, that there was no remedy or relief able to be granted either by the Full Court or a trial Judge on a rehearing, in the event of the appeal finding favour with the Full Court.

6. Having regard to the authorities which both parties appear from their pre appeal summaries to contend to be relevant, it is apparent to us that the appeal has the potential to raise a number of issues which are not without complexity.  I am not persuaded that the appeal is necessarily doomed to failure, but even if it is the concession made by learned counsel for the applicant that the unsuccessful appellant has the capacity to meet any order for costs which might result from that failure persuades me that the discretion to grant the relief sought in the application filed on behalf of the respondent wife ought not be exercised.  I accordingly would not make the orders sought in that application.

7. MAY J:  I agree entirely with reasons of the learned presiding Judge and would add only this perhaps for emphasis.  Whilst it may be difficult to see the utility of the appeal it cannot be said without the hearing of the appeal, including all of the arguments fully, that the appeal is demonstrably hopeless.  If the appeal does not succeed no doubt an order for costs will follow.  It seems at least to me that that would be a more appropriate remedy in this case.  I also would not allow the application.

8. BOLAND J:  I agree with the reasons of the learned presiding Judge and the reasons of her Honour Justice May and I have nothing further to add. 

9. COLEMAN J:  The order of the Court will be:

   1.   That the respondent wife’s application for security for costs, filed 1 March 2005, be refused.   

   2.   That the costs of this application be reserved to the Full Court hearing and determining the Notice of Appeal filed 23 February 2005. 

I certify that the preceding
9  paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
A. Coleman
Associate
Date: 20/05/05