Clivery & Conway

In the Full Court of the Family Court of Australia, Ms Clivery, the applicant, sought leave to file an application for security for costs of an appeal out of time, which was opposed by the respondent, Mr Conway. The appeal concerned an order for costs made by Waddy J following a trial regarding the welfare of the parties' daughter, Alexandra. The trial judge had ordered Alexandra to live with the father, primarily due to findings of physical abuse by the mother, despite her denials.

The central legal issue before the Full Court was whether to grant Ms Clivery an extension of time to file her application for security for costs. This application was made after the time limit for filing such an application had expired.

The Court considered the circumstances surrounding the delay in filing the application for security for costs. It appears the Court was satisfied that there were sufficient grounds to permit the late filing. The Court's reasoning focused on ensuring procedural fairness and allowing the applicant to pursue her right to seek security for costs, even if there had been a delay. The Court applied principles relating to the exercise of discretion in granting extensions of time for procedural steps in litigation.

The Court ordered that the time within which Ms Clivery had to file her application for security for costs be extended to the date on which it was filed. Furthermore, the costs associated with the application for leave to institute proceedings for security for costs out of time, and the costs of the application for security for costs itself, were reserved as costs in the appeal.