Bulleen and Bulleen (No 4)

[2010] FamCA 1088

FAMILY COURT OF AUSTRALIA

BULLEEN & BULLEEN (NO. 4) [2010] FamCA 1088

FAMILY LAW – STAY – Stay pending appeal – Discretionary exercise

Family Law Act 1975 (Cth)

Jennings Construction & Burgundy Royale (1986) 161 CLR 681
Kelly (1981) FLC 91-007
Stephens (2009) FLC 93-425

APPLICANT: Mr Bulleen

RESPONDENT: Ms Bulleen

FILE NUMBER: MLC 12431 of 2007

DATE DELIVERED: 8 October 2010

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 8 October 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Kirkham QC

SOLICITOR FOR THE APPLICANT: Gaden Lawyers

COUNSEL FOR THE RESPONDENT: Mr Dixon

SOLICITOR FOR THE RESPONDENT: Gillian Coote Family Law

Orders

1. That there be a stay of paragraphs 1-5 of the orders made on 28 September 2010 pending determination of the husband’s Notice of Appeal filed this day.

2. As a condition of the stay, the husband is restrained from disposing of any of the artwork in his possession or control and otherwise keeping it insured at all times until the determination of the appeal.

3. That the husband’s application for costs is refused.

4. That the reasons for judgment this day be transcribed.

5. That the application in a case filed this day and the response thereto filed this day be otherwise dismissed.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 12431 of 2007

MR BULLEEN

Applicant

And

MS BULLEEN

Respondent

REASONS FOR JUDGMENT

1. In March 2010, I made orders in a property dispute which granted, in part, a division of property, predominantly some real property and some artwork, leaving the balance of the methodology for dividing the parties’ property to themselves.  My hopes were not fulfilled, and the matter came back for hearing, at which stage there was further argument about the artwork. 

2. On 28 September, I delivered judgment in which I effectively reinforced the order that I had made in March, but this time set out a methodology for the division of the parties’ artwork. 

3. It is against that judgment that the husband has appealed, and yesterday he filed a notice of appeal. 

4. The notice of appeal asserts errors in respect of, effectively, the methodology, indicating, amongst other things, that the determination was not one in which he had had an opportunity to participate, and also that, contrary to my ultimate judgment, the jurisdiction to make a determination was not closed. 

5. The arguments today by both parties indicate very clearly that the issue is a live and hotly disputed one.  The question of a stay is a discretionary one.  Whilst the principles are clearly set out in a number of authorities, ultimately those principles simply guide the exercise of discretion. 

6. The husband’s position is relatively simple.  He says that notwithstanding an undertaking by the wife not to dispose of any of the art if the orders were implemented, he is put in a position where he has to comply with a procedural division order.  If he does not, it leaves the wife to decide what artwork she will have, effectively on a carte blanche basis.  If that occurred, there would be a possibility that the appeal might be moot, and there have been authorities of both the Victorian courts and English authorities, to which Mr Kirkham drew my attention, along the lines that a moot point is not something that should concern an appellate body, and generally the appeal fails. 

7. Mr Dixon, on behalf of the wife, assured both the husband and this Court that he would not be putting the point before the appellate court that the appeal is moot.  Mr Kirkham is comforted by that to some extent, but says that does not necessarily mean that the Court might not still adopt that position.  Obviously, I cannot bind the Full Court.  The other issues that are argued here is that if the wife agrees, as she has in her undertaking, not to dispose of the art, what is the purpose of the whole exercise, if in fact the whole thing has to be undone as a result of an order of the Full Court? 

8. Mr Dixon’s argument, on behalf of the wife, is that the property is hers.  She is entitled to the fruits of her judgment.  That has been a longstanding point in favour of the person who holds the judgment, but the unusual feature of this case is that it is not clear what specific artwork the wife will receive until such time as the methodology is in fact implemented.  If the husband chose not to participate in the process, then the wife would have carte blanche to do whatever she liked, and ultimately sell whatever she did not want. 

9. If the husband did participate pursuant to the order, then the wife is in the position where she would not know what artwork she was to get until each alternate pick had been undertaken.  All of those matters do not make the discretionary judgment any easier, but as I indicated, an appeal does not operate as a stay of the order and the discretionary exercise must be undertaken judicially. 

10. The rules of the court have set out that the application for the stay must be made to the trial judge unless unavailable, but apart from that, there are no criteria specified in the rules, nor in the Act as to how the exercise of discretion should be undertaken. 

11. We have to fall back, therefore, on a number of authorities.  The main authority has traditionally been Jennings Construction & Burgundy Royale (1986) 161 CLR 681, which was recently referred to by the Full Court of this Court in the matter of Stephens (2009) FLC 93-425. Some of the principles that have been used as guides are whether or not the refusal of the stay would render a successful appeal nugatory, but the Burgundy Royale decision went further than that and said that it also had to make the successful appeal impossible or impracticable to restore the status quo or the decision that previously operated. 

12. It may be impracticable for the parties if all of what I had ordered has to be undone.  It may very well be that the Full Court decides that there has to be a re-trial of the whole issue.  The Full Court may exercise its discretion, or for that matter, the matter may be sent back for me to determine according to law.  There is, therefore, some sense of impracticability about putting into place a division by a methodology that I implemented, and then having to undo it all again, perhaps even using a different methodology to the one that I set up. 

13. Another question is whether or not there will be hardship to one or both of the parties in granting or refusing the stay.  There is clearly no hardship for either party here, in the true sense of the words, because of the fact that the wife cannot know, until the husband either implements or does not implement the process that I set up, as to exactly what artwork she is going to have.  To that extent, hardship is really not terribly relevant to either party. 

14. A third issue is the question of the merits of the proposed appeal.  The husband argued the question prior to my delivering judgment in September, and I ruled against him;  I could not say that there was no merit in the proposed appeal.  My recollection of the submissions put were that there were a number of authorities about natural justice and fairness, and those are matters that the husband, no doubt, will put before the Full Court. 

15. The fourth matter then relates to the question of whether there has been any delay.  There can be no argument in this case that the husband has not delayed in applying for the stay, notwithstanding there has been considerable angst on the part of the wife about the fact that she had a judgment in March and had to go to the trouble of arguing, for a second time, her entitlement to get the artwork. 

16. The final matter is whether or not there is bona fides in respect of the appeal, or more importantly, in respect of the appellant, and that seems clearly in his favour.  Throughout the substantive trial, the husband argued that this artwork was his passion, and he was quite distressed, as I pointed out in the judgment, about the prospect that he might be not entitled to have that.  On the other hand, the wife equally said she was passionate about art and wanted it as well, but I suspect both parties are genuinely wanting to show that the artwork is very important to them. 

17. The one thing that I do not know is how long it would be before this appeal could be heard.  That has generally been one of the considerations in whether or not to grant a stay, but in this case, it might also be a consideration as to the delay in ultimately delivering any judgment on the appeal, particularly if the parties are in a holding pattern until that time.  Mr Kirkham raised the decision of Kelly (1981) FLC 91-007, which was a decision of Fogarty J. What his Honour there said was that a stay should only be granted in appropriate circumstances. This is a very finely balanced case, and it seems to me that the deciding factor in granting a stay is the impracticability of carrying out what I had ordered in circumstances where that might all have to be undone.

18. I say that somewhat hesitantly, because I am conscious of the fact that there are substantial amounts of money involved in the parties’ hands here, and therefore the very essence of transferring property backwards and forwards is probably relatively modest an issue, but it still seems to me that carrying artwork backwards and forwards, and implementing a process that I ordered, that may ultimately be set aside, does give rise to an impracticability. 

19. It is with some hesitation but I propose to grant the stay on the condition that the husband not sell any of the artwork in his possession and that he keep it insured pending the ultimate determination of the appeal. 

20. I do not propose to make any order in relation to the wife, having regard to the fact that she has given an undertaking that she would not dispose of any of the fruits that she already has in her possession anyway.  On that basis, I will make orders granting a stay pending the determination of the appeal.

RECORDED:   NOT TRANSCRIBED

1. Having just ruled in relation to the application for the stay, the successful litigant, the husband, through his counsel, has sought an order for costs on the basis that an endeavour was made to avoid the proceedings.  Section 117 governs any application for costs in this Court.  That provision says that each party pays their own costs unless there are circumstances justifying the departure from that principle.  In this case, the husband is seeking an indulgence, having regard to the fact, that I think was properly put, that the wife was entitled the fruits of her judgment. 

2. In those circumstances, I would say there are no circumstances that justify an order for costs, and the application will be refused.  I will order that those reasons be transcribed, and I will otherwise dismiss the outstanding application in response filed by leave this day.  Those orders will be issued within the half hour.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 8 October 2010.

Associate: 

Date:  2 December 2010