Bergman and Bergman (No. 5)

[2008] FamCA 672

FAMILY COURT OF AUSTRALIA

BERGMAN & BERGMAN (NO. 5) [2008 ] FamCA 672

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of operation of orders – Interim and case management issues

Family Law Rules 2004 (Cth) Chapter 22

APPLICANT: MR BERGMAN

RESPONDENT: MRS BERGMAN

POTENTIAL THIRD PARTY: MR SARINSSON

POTENTIAL FOURTH PARTY: MR PORTER

FILE NUMBER: MLF 5245 of 2003

DATE DELIVERED: 8 AUGUST 2008

PLACE DELIVERED: MELBOURNE

PLACE HEARD: MELBOURNE

JUDGMENT OF: YOUNG J

HEARING DATE: 8 AUGUST 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR GEDDES QC WITH MS JOHNS

SOLICITOR FOR THE APPLICANT: MARSHALLS & DENT

COUNSEL FOR THE RESPONDENT: MR ST JOHN SC

SOLICITOR FOR THE RESPONDENT: CAROLINE COUNSEL FAMILY LAWYERS 

THE POTENTIAL THIRD PARTY: IN PERSON

SOLICITOR FOR THE POTENTIAL THIRD PARTY : N / A

COUNSEL FOR THE POTENTIAL FOURTH PARTY: MS NIKOU SC

SOLICITOR FOR THE POTENTIAL FOURTH PARTY: CAREW COUNSEL PTY LTD

ORDERS

IT IS ORDERED:

1. THAT leave be granted to the solicitors appearing for the Case Guardian, on behalf of the husband, to file this day an Application in a Case and the supporting affidavit and annexure of Ms Counsel, solicitor, including the draft Notice of Appeal.

2. THAT leave be granted to the solicitors appearing for Mr Porter to file a further Application in a Case and a supporting affidavit of his solicitor.

3. THE operation of the orders pronounced 4 August 2008 be stayed pending the hearing of a Full Court Appeal in October 2008.

4. THAT subject to any further order or direction of the Full Court, or any Judge of the Appellant Division of the Court, the hearing of the appeal be listed in Melbourne for a period of two (2) days in the fortnight commencing Monday 6 October 2008.

5. THAT the conduct and management of the appeal be otherwise referred to the Regional Appeal Registrar on a date and time to be fixed as soon as practicable.

6. THAT all necessary times and filing dates are to be abridged to facilitate the hearing of the Full Court Appeal.

7. THAT the Case Guardian is to diligently pursue the Full Court Appeal (and it is noted that her Senior Counsel has given that assurance, on instructions, to the Court this day).

8. THAT within sixteen (16) days the Case Guardian, on behalf of the husband make, file and serve an Application in a Case and written submissions and legal argument in support thereof seeking orders for the disqualification of Young J from any further hearing in the proceedings.

9. THAT any response(s) and written submissions and legal argument be filed on behalf of the wife, Mr Porter and Mr Sarinsson within sixteen (16) days thereafter.

10. THAT the return date of the Application in a Case referred to in Order 8 hereof be fixed for 16 September 2008 and for a hearing of not more than one (1) days’ duration.

11. THAT as to all issues of the payment of legal costs the wife, Mr Porter and Mr Sarinsson file any further applications or written submissions and legal argument within a period of fourteen (14) days.

12. THAT the Case Guardian file any response and the written submissions and legal argument within a further twenty-one (21) days thereafter.

13. THAT each of the extempore judgments given this day be transcribed, be placed upon the Court file and be made available to all parties.

14. THAT otherwise all extant applications both interim and final be adjourned for mention and case management on 16 September 2008 before Young J.

15. THAT the costs of the Case Guardian, the wife and Mr Porter of and incidental to the hearing this day be reserved.

IT IS CERTIFIED

1. THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel including Senior Counsel for all parties.

IT IS FURTHER ORDERED BY CONSENT:

1. THAT the undertaking given by the Case Guardian to the Court on 19 June 2008 and paragraph 1 of the Orders made that day, as further extended by the Court, be continued in full force and effect pending the hearing by the Full Court of the Notice of Appeal, in or about the first half of October 2008.

IT IS NOTED:

1. THAT Senior Counsel for the Case Guardian has advised the Court that any monies paid by or on behalf of the wife to B2B solicitors pursuant to a County Court agreement obtained in favour of the husband are to be held in their trust account and not disbursed to or on behalf of their client pending any further or direction of the Court to be made on 16 September 2008.

IT IS NOTED that publication of this judgment under the pseudonym Bergman & Bergman is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 5245 of 2003

MRS BERGMAN

Applicant

And

MR BERGMAN

Respondent

And

MR SARINSSON
Potential Third Party

And

MR PORTER
Potential Fourth Party

REASONS FOR JUDGMENT

1. The matter of Bergman and Bergman and Others is before me on this adjourned hearing date.  Mr St John of Senior Counsel appears for the case guardian on behalf of the husband. Mr Geddes, one of Her Majesty's counsel, and Ms Johns appears for the wife.  Ms Nikou of senior counsel appears for Mr Porter.  Mr Sarinsson again appears in person.

2. On Monday of this week I delivered written reasons for judgment on the various joinder and related matters that were previously argued before me.  Those reasons were delivered in what was hopefully regarded as a timely manner, to facilitate all counsel and clients having the opportunity of reading that judgment before the further hearing this day.

3. This matter commenced at 10 .00 a.m. this morning and the various issues before the court were outlined.  It was intended that one or several of these issues were to be dealt with this day.  In no particular order they were:

   a)A stay of the orders contained in my judgment pending the grant of leave to appeal to the Full Court.

   b)An application foreshadowed by Senior Counsel for the case guardian that I disqualify myself from any further hearing or involvement in these proceedings.

   c)Various costs applications, both consequent upon my judgment orders and upon the many and varied costs orders that have been previously reserved either by myself or Watt J.

   d)The issue of the case guardian being released from certain undertakings given to this court to facilitate the manner in which the upcoming Magistrates Court hearing involving Mr Sarinsson is prosecuted or further developed.

   e)The various applications that the wife has before the court for security for costs and a Barro type order, and otherwise to injunct or make restraining orders arising out of a County Court settlement where the wife and her sister were defendants to an action brought personally by the husband.

   f)Various ongoing injunctive orders that presently are current and restrain the commercial and business management and direction of Mr Porter in relation to the W project and otherwise generally.

4. This morning I received by email transmission costs submissions and legal argument from counsel for the wife and Mr Porter.  They are not yet filed.  Ms Nikou has sought to supplement her costs submission by the filing of an affidavit of her instructing solicitor, which has not yet been received by the court and I have certainly not read the document.  Mr St John has likewise sought leave this morning to file an application in a case foreshadowing the proposed stay of orders, and has presented to the court an affidavit of his instructing solicitor in compliance with the Rules and to which was annexed a draft notice of appeal. 

5. I have already indicated this morning that I would grant leave for the filing of that application in a case and the supporting affidavit.  I have left open whether there was to be any response filed by any of the other parties of individuals or any affidavits upon which such response or argument may be based. 

6. I have had foreshadowed by Mr St John that there is a further intended response to various orders that is not yet before the court.

7. I made preliminary inquiries, primarily as a matter of assistance to the parties, to ascertain when the Full Court may be able to deal with the proposed leave to appeal.  In the absence of the Appeal Registrar, who is not in the court precinct today, and without talking to any member of the Appellant Division of the Court, I have been advised that in the fortnight commencing 6 October there would likely be a two-day hearing opportunity in Melbourne or in Adelaide.  Clearly, given the involvement of all counsel and the parties, this matter should ideally be heard in Melbourne.

8. The Family Court Rules, Chapter 22, deal generally with appeals and with stays.  I am particularly conscious that Rule 22.12(3) requires an application for a stay to be made to the judge who made the order under appeal.  Quite obviously that is myself; and my primary obligation, subject to any other disqualifying matter, would be to determine if there was to be a stay in the operation of my orders, and to effectively direct the matter to the Appeals Registrar for the preparation of a hearing including the summaries of argument and the filing of the appeal books and like procedural steps.

9. I am also conscious that there are very different agendas being pushed on behalf of clients by all counsel.  Mr Geddes has emphasised that the wife urgently needs a fund made available to meet her costs and her financial obligations to her legal practitioners.  Additionally, the wife has the compliance dates of her County Court settlement, her obligation to pay a sum of approximately $75,000 to the husband by way of that settlement, jointly on behalf of herself and her sister.  The wife's concern is said to be to ensure that those moneys are secured and are not available to the husband to dissipate or whatever, as they would allege.

10. Ms Nikou on behalf of Mr Porter is primarily concerned with the speedy hearing and disposition of all matters before the court.  She reminds me of the orders that I had made in this judgment, which is now to be subject of appeal.  There is the more involved issue of the continuing injunctions which are currently extant until this day against her client.  She has on instructions indicated to the court that there would be a favourable position taken by her client to a continuation of some form of the injunctions, perhaps largely on a practical basis.  The issue, however, as to the exact nature of or limitation upon the current injunctive orders, are very real matters that the court is yet to hear any submission upon and clearly there is no current evidence before the court detailing the specific variations for financial or legal or commercial or whatever reasons, as are sought by Mr Porter.

11. Finally, the case guardian has a number of matters before the court.  The first and primary position of Mr St John is to indicate to the court that the proposed disqualification argument should be first heard.  Through discussion this morning, it is clear that at least a portion of that disqualification argument will be based upon paragraph 99 of my reasons for judgment and matters that Mr St John may develop therefrom. 

12. There may of course be other facts upon which the disqualification application is pursued, but I am currently of the view that it is both proper and not contrary to normal practice to require that application to be committed to writing in the form of an Application in a Case.  In due course I will require written submissions in support of that disqualification application, and I will invite counsel for the other parties - and Mr Sarinsson if he so choses - to file any responding submissions.

13. I did explore with counsel their reasonable availability over the next few months, and the outcome does not give total flexibility to the court.  It is understandable that counsel have their personal obligations and are unavailable on various dates between now and early October.  Indeed, all three counsel indicated that as and from 20 September or thereabouts they are unavailable for several weeks, and other counsel for longer periods.  The court can only do its best to accommodate these continuing interim and interlocutory hearings and applications that are deemed necessary. 

14. I propose to create a modest timetable which will facilitate on the first available date that argument in respect of disqualification being properly heard and then determined.  As it occurs, I am listed in the duty list in the week commencing Monday, 15 September, and currently on Tuesday, 16 September I have no interim hearing listed and I have been able to quarantine that date.  It is the only day that seemingly is available in September.  I understand that Mr St John is unavailable from the commencement of September for approximately a month, but I have no other realistic opportunity to enable written submissions to be filed and for that matter to be heard and determined as soon as practicable.

15. I did have regard simply to leaving that disqualification matter until after the Appeal in the Full Court and later in the year, but I was urged by all counsel to endeavour to hear that matter as soon as practicable.  I record for the purposes of these extempore interim reasons that, at this stage of the proceedings, Ms Nikou has indicated that her client does not wish to be heard on that topic.  Similarly, Mr Geddes has reserved his position and he may or may not wish to be heard.  I will provide interim orders to facilitate all counsel the opportunity of filing responses if appropriate. 

16. Very much the concern of Senior Counsel for the case guardian was that his client should not be seen to in any way acquiesce or leave herself open to any claim that she has not diligently pursued the disqualification at the earliest opportunity.  I have said in discussion with counsel that I would not regard any subsequent claim as contaminated by a delay in hearing that disqualification argument.  I would not envisage there is any compromise whatsoever upon Mr St John's argument or upon his client's case, but I have determined it is necessary to resolve the stay and other consequential matters this day.

17. It is balancing what time is available to the court in this day.  It is a Friday.  I have a four-day defended matter that will be proceeding next Monday, and I have no other sitting day between now and the day that I have been able to salvage from the duty list.  I have therefore indicated to counsel that I would not expect there to be any criticism of case guardian in the way in which the court has directed that the disqualification matter lay open and only be heard on Tuesday 16 September.  All parties, and indeed the court, are on notice that as of today Mr St John intended to and came prepared to argue that situation.

18. I now propose to deal with the stay and other consequential matters, and try and prepare the further interim and interlocutory hearings before me, or perhaps before another judge, and otherwise to set the framework for the Full Court appeal.  I will have these reasons transcribed, placed upon the court file and made available to all parties.  I should add that, as Mr Sarinsson appears for himself, he did not wish to be heard on the disqualification issue.  He has otherwise consented to a release of the case guardian from an undertaking so that she can pursue Magistrates Court proceedings, through various entities, against him; and those matters will be unrestricted by any undertaking given to the court.

19. I propose to pause in this judgment at this stage as all counsel have indicated they wish to raise other matters with me.  I will hear further procedural and case management submissions and in due course will then continue this judgment and deal with the remaining issues now before the court.

Continued Judgment

1. This is a continuing judgment in the matter of Bergman and Others.  This aspect of the judgment deals only with the issue of a stay of my orders pronounced 4 August 2008.  It is an extempore judgment delivered without leaving the bench and in the context of a busy day and trying to resolve one and many applications and issues before the court. 

2. On behalf of the case guardian, Mr St John seeks a stay of the operation of my orders pending the hearing by the Full Court of leave to appeal.  The draft notice of appeal is before the court annexed to the affidavit of instructing solicitor Ms Caunsel.  There is an application before the court by which the stay is sought.

3. Both Mr Geddes for the wife and Ms Nikou for Mr Porter oppose the stay, and the essence of their opposition is that there is no special or appropriate circumstance that has been identified to justify the stay. 

4. The Family Law Rules deal with appeals and stay of orders pending appeal in Chapter 22. A filing of an appeal does not operate as a stay of the operation or enforcement of the order, and the primary rule is that the judge who made the order should be the person determining whether there is a stay. I do not propose to pass that obligation to any other judge of this Registry.

5. As I touched upon in an earlier judgment delivered a short while ago, there is the opportunity for the Full Court to hear this matter in early October.  In that context therefore the length of time pending hearing of appeal is limited.  I accept the bona fides of the applicant in seeking an appeal hearing.  The issues before the court are somewhat complex.  They certainly involve legal issues and interpretation of statute or case law.

6. The orders of 4 August are operative in that they dismiss or deal with various applications that are before the court.  Both Mr Geddes and Ms Nikou have emphasised that a successful client is largely entitled to the fruits of litigation, having the benefit of the outcome of the judgment immediately available.  It is in that context that each of them have been at some level of argument to highlight that the circumstances here could not be said to be exceptional so as to merit a stay. 

7. I disagree.  What is required in this case is, because the appeal documents are now in draft and will be filed, a proper opportunity for the case guardian on behalf of the husband to argue a right of appeal on an interlocutory judgment which I regard as fundamental to the overview of this case and the development of any financial argument before the court.  Whilst I have considered at some length in my reasons for judgment the overview of the factual circumstances, it is ultimately the case guardian who sought to bring all property and financial matters of and incidental to the marriage and beyond the marriage to account here, and to ascertain a pool of assets.

8. I have made findings in my lengthy reasons that I will not here reiterate.  I am however satisfied that it is only by

9. an unreasonably harsh measure that one could argue that the circumstances are not special or appropriate to grant a stay.

10. I find that there would be hardship to the case guardian and therefore to the husband if a stay were not granted there must be a level of risk that would result to the applicant in the presentation of the case hereafter if a stay were not available to facilitate the time which it takes for the Full Court to hear the appeal. 

11. In summary, and in these very brief words, I deem it proper that I exercise my discretion to grant a stay.  I find the grounds and circumstances appropriate.  I specifically find on my overview of this case and my somewhat detailed knowledge of facts and events that the circumstances are both appropriate and special, and I will grant a stay pending the October Full Court hearing.

MR GEDDES:   Your Honour, before you move to a new point can I just by way of clarification - the stay is granted simply to the next sitting of the Full Court?  We don't want to - if the appeal is not prosecuted zealously, we don't want to be in a situation that it continues on ad infinitum without some sort of sunset. 

HIS HONOUR:   I have specifically said, until the fortnight sittings commencing 6 October.

MR GEDDES:   Thank you, your Honour.

HIS HONOUR:   If for any reason of the doing of the case guardian the matter was subsequently sought to be delayed, then that would be a matter of significant influence and perhaps would call for a reconsideration of that issue.  I have made it abundantly clear it was the mere fact that a hearing was available in the near future, that was part of the discretionary exercise of consideration.  I am sure Mr St John well and truly underheard me.

MR ST JOHN:   Indeed, your Honour.

HIS HONOUR:   I'm sorry, well and truly heard me emphasising that.  All right, and ‑ ‑ ‑

MR ST JOHN:  If it is of assistance, your Honour, it is not uncommon for there to be a requirement of an undertaking to diligently pursue the application for leave to appeal, and I am quite prepared to give that undertaking to the court or to state it in open court, to satisfy my friend Mr Geddes.

HIS HONOUR:   What you are saying is that the case guardian will diligently pursue ‑ ‑ ‑

MR ST JOHN:   Pursue the application for leave to appeal.

HIS HONOUR:   If that exchange with Mr Geddes and Mr St John can be incorporated within my most recently concluded reasons for judgment, that would be appropriate.

I certify that the preceding paragraphs are
a true copy of the reasons for judgment herein
of The Honourable Justice Young

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Associate: