Bele & Vaughan - [2011] FamCA 724

FAMILY COURT OF AUSTRALIA

BELE & VAUGHAN

[2011] FamCA 724

FAMILY LAW – Stay application; application dismissed

Family Law Act 1975 (Cth)

Cellante and Ors v G Callis Industries Pty Limited [1991] 2 VR 653
Kelly and Kelly (1981) FLC 91-007
Maher and Anor v Commonwealth Bank of Australia and Anor [2008] VSCA 122
Scarborough v Lews Junction Stores Pty Limited [1963] VR 129
Stephens and Stephens (Stay Application) (2010) FamCAFC 20

APPLICANT:

Ms Bele

RESPONDENT:

Mr Vaughan

FILE NUMBER:

MLC

9056

2009

DATE DELIVERED:

13 September 2011

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

9 September 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Hawkshaw

SOLICITOR FOR THE APPLICANT:

No 1

COUNSEL FOR THE RESPONDENT:

Mr Sweeney

SOLICITOR FOR THE RESPONDENT:

Mills Oakley Lawyers

Orders

That the application in a case filed 1 September 2011 and the response filed 8 September 2011 are both dismissed save as to any issue of costs.
That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 30 September 2011 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 14 October 2011 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.

IT IS NOTED that publication of this judgment under the pseudonym Bele & Vaughan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9056 of 2009

Ms Bele

Applicant

And

Mr Vaughan

Respondent

REASONS FOR JUDGMENT

Ms Bele to whom I shall refer as the applicant filed an application in a case on 1 September 2011. No indication of legal representation appeared in that document although when it was heard on 9 September 2011, Ms Bele was represented by counsel.
The application sought a stay of the order I made on 9 June 2011 until the Full Court appeal. It further sought that the application filed 7 October 2009 which is currently listed before Le Poer Trench J on 8 December 2011 (as a result of an order made on 4 July 2011 by Registrar Mestrovic) be stayed until the determination of the appeal by the Full Court. She also sought an order that the costs application by Mr Vaughan (“the respondent”) arising out of my June order be stayed until the determination by the Full Court.
The background to the appeal and this application is straight-forward. On 9 June 2011, after a contested hearing in which the applicant was represented by senior counsel, I made a declaration under s 90RD of the Family Law Act 1975 (Cth) (“the Act”) determining that the Court had jurisdiction to hear a property dispute between the applicant and the respondent.
By her Notice of Appeal on 7 July 2011, the applicant sought orders which, in essence, ask the Full Court to set aside the declaration and to dismiss the application for substantive relief sought by the respondent. The Notice of Appeal also sought a declaration that the “geographical requirement” of s 90K of the Act had not been satisfied and therefore that the respondent had no “standing” to apply in Australia for the relief that he had.
Several grounds of appeal appear in the Notice but counsel on behalf of the applicant only sought to rely on the geographic requirement issue on the basis that it amounted to a jurisdictional issue. However, the application for the stay raised a number of other matters upon which counsel for the applicant relied with written submissions which I have taken into account. Accordingly, each party was represented by counsel and made submissions.
In respect of the stay issue, the applicable law is found in Rule 22.11 of the Family Law Rules 2004 (“the Rules”).
Importantly, the Rules are silent on how any application for a stay should be determined. In Kelly and Kelly (1981) FLC 91-007, Fogarty J said that each case had to be looked at in the light of its own circumstances against the background of an approach which was followed in a number of different jurisdictions. That general approach was that special circumstances had to be shown to justify a stay. Those special circumstances included that a refusal of a stay would render an appeal nugatory (see Scarborough v Lews Junction Stores Pty Limited [1963] VR 129). Other examples given by Fogarty J (and therefore no more than a guide) were that it would be proper to grant a stay where it may prove impossible or impracticable to restore the previous existing position if the appeal proved successful or, where specific hardship could be shown.
Similar provisions to Rule 22.11 appear in the Victoria Supreme Court (General Civil Procedure) Rules 2005. That is, an appeal does not stay a judgment but the court may stay it. In Maher and Anor v Commonwealth Bank of Australia and Anor [2008] VSCA 122, the Victorian Court of Appeal said that prima facie, the successful party was entitled to the benefit of the judgment and there was a presumption that the judgment was correct thereby placing the onus on the appellant of demonstrating that a stay was justified. The Court of Appeal referred to Cellante and Ors v G Callis Industries Pty Limited [1991] 2 VR 653 where Young CJ interpreted the applicable rule to mean that the applicant for the stay had to show special or exceptional circumstances to take the case out of the general rule that an appeal does not operate as a stay. The Court of Appeal went on to say that the discretion of the court considering the stay was wide and all circumstances should be taken into account. Those statements are consistent with what Fogarty J said in Kelly (supra). The Court of Appeal went on to contemplate when special circumstances might exist and in doing so, included the question of whether there was a real risk that it would not be possible for a successful appellant to be restored substantially to his former position if the judgment had been executed prior to the appeal. There were other considerations which are not relevant here relating to the removal of property from the jurisdiction of the court.
Notwithstanding an assertion by counsel for the applicant in her written submission that the applicant did not need to demonstrate a special or exceptional circumstance, I am satisfied that to obtain a stay, the applicant must show some circumstances which could be described as special to justify removing the presumption to which the respondent is entitled namely that he has a judgment and that it stands until such time as a Full Court determines otherwise. Accordingly, I am satisfied that to obtain a stay, the appellant must show some circumstances which could be described as special.
In Stephens and Stephens (Stay Application) (2010) FamCAFC 20, a case involving an application for a stay of the Full Court orders pending a High Court special leave application, the Full Court reiterated that position.
Clearly in Stephens, the application related to a special leave application to the High Court but I consider the principles there set out remain the same in respect of an application from a trial judge to the Full Court.
The determination of whether or not the presumption has been misplaced must be determined on the balance of probabilities.
Counsel for the applicant argued two points. The first was that there was no jurisdiction for this Court to have determined anything between the parties because of the requirement to satisfy the geographical matter set out in the Act. She further argued that if there was no jurisdiction to determine that issue, there could be no jurisdiction to make an order for discovery or any other procedural order that would enable the trial to proceed before Le Poer Trench J in December.
The justification for those submissions boiled down to the fact that the applicant would suffer “legal prejudice” if she had to participate in those interlocutory orders and fulfil them but also that her legal rights were infringed by having to so participate.
Counsel argued a number of principles which are set out in paragraph 6 of the written submissions. Save for the requirement to show some special circumstances, little else turns on those matters.
Counsel argued that the determination revolved around the question of whether there was a risk that the appeal would be rendered nugatory if the stay was not granted. In respect of that, I am satisfied that there is no prejudice to the applicant. That is because I see no reason why an application for an adjournment to the trial judge could not be made. Apart from the fact that I would not be in a position to prevent the trial judge taking an opposite view to me, the grounds for an adjournment may very well be different to those which I have to contemplate. Further, if the trial did proceed, there are sufficient assets in this case to remedy any of the applicant’s concerns by way of an order for costs if the Full Court agreed but there was no such jurisdiction because of the geographical issues. There is also the vexed question of what s 90RH means and how it operates. In relation to the issue of interlocutory orders such as discovery and filing of material pending the trial, they cannot be dependent upon jurisdiction. Every court has jurisdiction to determine whether in fact it has jurisdiction to hear the case in the first place and all of the necessary procedures associated with determining hearings must be open to the Court. Any prejudice to the applicant can be resolved by either costs or an order relating to the use and admissibility of the evidence.
Whilst it is difficult to assess the merits of appeal against one’s own orders and judgment, the reason why I cannot accept that the geographical limitation issue has merit is that the applicant at trial was represented by senior counsel and at no stage was the suggestion ever made that there was a geographical jurisdictional problem. In addition, it was brought to my attention that the solicitor for the applicant also did not raise that issue prior to the commencement of the trial. Counsel for the applicant indicated that her client had given those instructions but that is not a matter that I should take into account having regard to the seniority of the counsel who appeared for the applicant at trial and the way in which he conducted the proceedings on her behalf. The affidavit material in this application does not support such an assertion.
Counsel for the applicant was not in a position to argue authoritatively in any event that any such concession by senior counsel at the trial could not be made if there was no jurisdiction in the Court in the first place. In other words, where there cannot be jurisdiction, a court cannot give to itself that jurisdiction. Thus, I do not think the assertion that there is no jurisdiction based on geographical limitation grounds has any merit.
Accordingly, I am satisfied that the applicant has not shown any special or unusual circumstances here. The respondent is entitled to the judgment which gave rise to the declaration. There is no prejudice in any real sense to the applicant. There is significant prejudice to the respondent because the delay in the normal course of events may be significant. Counsel for the applicant was not able to tell me what inquiries had been made about a likely appeal hearing but counsel for the respondent said that the earliest would be February 2012. Those issues seem to me to be matters for the trial judge. If the trial judge upon application considers it is inappropriate to hear the trial, the matter can be appropriately raised at that time.
In the circumstances, the application must be dismissed.
I raised with each of the parties the question of costs and it was agreed that they should be undertaken by written submission and I propose to make orders accordingly.

I certify that the preceding Twenty One (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 13 September 2011.

Associate:

Date: 13 September 2011