Crawford and Crawford

[2007] FamCA 410

FAMILY COURT OF AUSTRALIA

CRAWFORD & CRAWFORD [2007] FamCA 410

FAMILY LAW - ORDERS - Stay - Dismissal of husband’s misconceived application to stay an order pending appeal where there is no appeal filed or pending – Dismissal of husband’s application to stay enforcement of an order by sale of real property where an application for a stay in those terms has earlier been made and dismissed – Wife’s costs of opposing his application to be paid by husband forthwith

Family Law Act 1975
Family Law Rules 2004

In the Marriage of Kohn (1977) 30 FLR 175 at 177
LAC and TRF and LKL [2005] Fam CA 158 at [41]
Brown & Brown (1998) FLC 92-822 at 85,347

APPLICANT: Mr Crawford

RESPONDENT: Mrs Crawford

FILE NUMBER: MLF 5587 of 2002

DATE DELIVERED: 30 April 2007

PLACE DELIVERED: Melbourne

JUDGMENT OF: Bennett J

HEARING DATE: 30 April 2007

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr Bear

SOLICITOR FOR THE RESPONDENT: Mahonys

Orders

1. That the Husband’s application filed 4 April 2007 and the Wife’s response to an application in a case filed 10 April 2007 be dismissed.

2. That the Husband pay the Wife’s costs of and incidental to the application fixed in the sum of $2,000.00 such payment to be made forthwith.

3. I DIRECT that my reasons for decision delivered this day be transcribed and when transcribed the original be placed on the court file and copy be sent to each of the parties.

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 5587 of 2002

MR CRAWFORD

Applicant

And

MRS CRAWFORD

Respondent

REASONS FOR JUDGMENT

(ex tempore)

1. This matter comes before me in the duty list as the first return date of the husband's application in a case filed on 4 April 2007.  He seeks the following orders:

   1. Pursuant to Rule 22.12(2) I apply for an Order to Stay the operation or enforcement of the Order 1 Feb 2006.

   2. Pursuant to Rule 22.12(3) application for a Stay MUST be made to the Judge who made the Order (Justice Bennett).

   3. Pursuant to Rule 22.45(2)(a) the Judge may Order that the application be dealt with by the Court without an oral hearing (supported by Rule 1.04 and S 43 of the Family Law Act 2005).

2. The respondent wife seeks a dismissal of the husband's application in the case and does so by a response filed on 10 April 2007.  She seeks that the applicant husband pay her costs of the application on an indemnity basis, however, as the matter proceeded before me costs were sought only on a party-party basis. 

3. The matter has a fairly extensive history.  Relevantly for these proceedings, it commences on 1 February 2006 when I made orders sought by the parties by consent which altered and finalised their interests in property.  Those orders provided, amongst other things, that the husband pay the wife $350,000 by making a payment of $100,000 on 3 March 2006 and $250,000 on 3 June 2006.  Furthermore, the orders provided in paragraph 2(b) that the husband, at the same time as he made the second payment, was to discharge any encumbrance affecting the family home which was to be transferred to the wife. 

4. I am advised that there is an amount of some $561,000 secured by a mortgage still affecting the former matrimonial home and that, to date, the husband has only paid $100,000 of the $350,000 he is required to pay.

5. The husband's evidence in support of his application is as follows:

   1. I repeat contents of my affidavit filed 16-Nov 2006 tere (sic) are several unacceptable error in case MLF 5587 of 2002.

   2. It is essencial (sic) that the Registrar amend the face sheet of the order 1/Feb/2006 to read “before the Honourable Justice Bennett”.

   3. This amendment is of vital importance as pursuant to Rule 22.12(3) the application for a stay must be made to the Judge who made b (sic) the Order.

   4. Justice Brown refusal is an abuse of court proceeding-equally illegal us the Order of Justice Young to transfer personal family assets “without any knowledge of the above case” I attach exibit (sic) 1 letter to NAB not to relise (sic) titles untill (sic) determinaton (sic) of the full bench of the Court of Appeal.

   5. Pursuant to Rule 22.45(2)(a) the Judge may order that the application be dealt with by the Court without an oral hearing. Considering S 43 S94(2) and Rule 1.04…. To ensure that each case is resolved in a just and timely manner at a cost that is reasonable to the parties and the Court.

   6. Alternatively revoke appeal Registrar decision and allow the ammendmnt (sic) of form 20 pursuant to Rule 22.09 “without permission at any time”.

   7. It is imperative that out society has confidence in the judicial integrity of our legal sistem (sic) exibit (sic) 2 C.C. Letter to Chief Justie (sic).

   8. Pursuant yo (sic) Rule 22.18 the Judge (from the bench or better interstate) may conduct a settlement conference.

   9. Pursuant to Rule 20.19 I trust to reach an agreement.

6. However, before me the husband made clear that what he actually wants is an order which will postpone or cancel an auction of a commercial property, being a floor of a building at W, which is scheduled for 1pm on Wednesday of this week, 2 May 2007.  That auction takes place pursuant to orders made by Brown J on 14 November 2006. 

7. On 14 November 2006, the matter came before Her Honour as the husband's application pursuant to s.79A to set aside the consent orders of 1 February 2006.   The basis of the application was that there had been a miscarriage of justice by virtue of the husband not being able to understand what he was doing when he purported to consent to the orders.  Her Honour dismissed the husband's application pursuant to s.79A and put in place a further regime for enforcement of the orders of 1 February 2006.  Her Honour’s reasons for decision are on the court file and I have had regard to them. 

8. To date the husband has not appealed the final orders made on 1 February 2006.  It is apparent, however, that Brown J considered that the husband may want to do so, for Her Honour's reasons for judgment for a hearing on

   
   

   29 January 2007 contain the following comments and observations:

   5. On 16 January, 2007 this year the husband filed a form 2 application.  By then, he was acting for himself.  In the application the husband sought that the orders of 1 February, 2006 be stayed, pending determination of the appeal to which I have adverted.  He also sought an order that in the event the former matrimonial home in [N], had been sold (pursuant to the final orders) and pending determination of the appeal, the net proceeds of the sale be held in an interest-bearing account in the name of the parties.  In support of that application, the husband filed an affidavit sworn on 16 January, 2007.

   6. In light of discussions with him this morning, it appears that what the husband may have intended was to appeal against the final orders made by consent on 1 February, 2006.  There is no mention of those orders in his notice of appeal;  it is an appeal only against my orders of 14 November, 2006.  Those orders are, of course, relevant to his complaint about the earlier order.

   7. An appeal must be filed within one month of the making of the orders to which it relates.  The husband is well out of time in respect of the orders of 1 February, 2006.  Were he to apply for leave to appeal out of time in respect of those orders, the Court would have to take account of the fact that he earlier filed an application to set aside those very same orders, and was unsuccessful, and is appealing against that decision.  Were he to succeed in his current appeal, and (whether by order of the Full Court or order of a subsequent trial judge) were his application to set aside the February orders to succeed, the original applications for final property orders would then be reheard.

   8. On the face of the documents, there is no connection between the order in respect of which the appeal is made (the order of 14 November, 2006) and the order which the husband seeks stayed pending the determination of his appeal (the order of 1 February 2006), but the husband’s intention is clear.  Without the consent of the wife, I propose to allow the husband to amend his form 2 application to seek (as an addition or in the alternative) that the orders made by me on 14 November 2006 be stayed.

   [….]

   12. It is difficult for a litigant to act for him or herself in proceedings of this sort.  I understand the husband’s desire to cut through what he sees as bureaucrat red tape and unnecessary regulation to get to the heart of the issue as he sees it.

   13.The husband’s current appeal is against the orders made on 14 November 2006.  The Court cannot ignore that reality.  I have allowed him to vary his application to seek a stay of both sets of orders but I cannot redraft his notice of appeal.

   14.In considering a stay, the court has to balance a number of factors.  Is it likely that the fruits of successful litigation will be lost if a stay is not granted?  What are the merits of the respective appeals?  What is the potential prejudice to each of the parties if the stay is granted, or is not granted?

   15.A trial judge must be cautious when considering the merits of an appeal, but this is an unusual case.  I have looked at the husband’s notice of appeal.  There must be significant doubt as to whether it a competent appeal.  The success of the appeal is not a matter for me;  it is a matter for the Full Court.  But it is easy to imagine an outcome that will not only disappoint the husband but expose him to a potential costs order.  The chance of a successful appeal as drawn must be said to be exceedingly low.  

   16.Taking every care to consider possible prejudice to the husband, there is nothing in the evidence that satisfies me that the fruits of litigation are likely to be lost to him were an appeal successful.  There is no evidence before me of past waste or improper disposal of assets by the wife. 

   17.In those circumstances, I cannot find it appropriate to stay either my orders or Bennet J’s orders and I do not do so.  The husband’s form 2 filed 16 January will be dismissed.

9. In due course the husband did file a Notice of Appeal in relation to the orders made on 14 November 2006.  Because I noted that neither the husband's material nor the wife's material in response (being their affidavits sworn respectively on 10 April 2007 and on 4 April 2007) mentioned any appeal against the order made in February 2006, I caused enquiries to be made of the Appeals Registrar for the Southern Region the progress of the husband’s appeal.  I was advised as follows and earlier this morning made known to the husband the following comments of the Appeals Registrar:

   1.[The husband] has one outstanding appeal that relates to the order on 14 November 2006.  He has not filed an appeal (or any application for an extension of time) in relation to the orders made on 1 February 2006.

   2.        Subject to the appeal books being filed, the appeal will be listed in       the sittings of the Full Court to commence in Melbourne on 28 May          2007.

   3.Pursuant to orders made on 28 February 2007 [the husband] was to file appeal books by 11 April 2007.  He has not done so and the appeal will be deemed abandoned under the Rules if not filed by 9 May 2007.

10. I informed the parties accordingly.

11. Following the husband having filed a Notice of Appeal in relation to the orders of 14 November 2006 the husband sought a stay of Her Honour's order made on 14 November 2006 in relation to the enforcement aspect of those orders.  Specifically, the husband sought a stay of orders that are the basis for the forthcoming auction. 

12. The application for a stay of orders made on 14 November 2006 was dismissed by Brown J on 29 January 2007 for reasons which I have largely extracted above. 

13. Today, the husband takes the point that Her Honour also purported on 29 January 2007 to dismiss an application for a stay in respect of the consent orders made on 1 February 2007.  He says that Her Honour was in effect acting ultra vires or in an unauthorised manner when she purported to do so because the Rules provide, and he referred in particular to Rule 22.12(3), that any application for a stay must come before the Judge who made the original order.

14. The husband has incorrectly interpreted the relevant Rule.  It provides that an application ought come before the Judge who made the primary order if that Judge is reasonable available.  What the husband disregards is that he has never filed a Notice of Appeal in relation to the orders made on 1 February 2006 so it is trite to say that he is not competent to seek a stay of those orders pending appeal. 

15. When the husband commenced to make submissions before me today he insisted that he had filed a Notice of Appeal against my orders of 1 February 2006.  I stood the matter down for approximately one hour during which time the husband was able to attend upon the Appeals Registrar for the Southern Region to obtain a copy of any such notice. 

16. Mr Bear, who appears today on behalf of the respondent wife, said that his client had never been served with a Notice of Appeal in relation to the orders of February 2006.

17. A search of Casetrack indicated that none had been received by the court.  The husband said that there was an appeal in existence, but he did not have any documents, hence I directed that he attend upon the Appeals Registrar.

18. The husband returned to court with was a copy of a letter dated 9 March 2007 from the Regional Appeals Registrar to him, and in relation to a Notice of Appeal about the orders made in February 2006.  That letter is self explanatory.  Omitting formal and irrelevant parts, it reads as follows: 

    I refer to your letter of 5 March 2007.  As explained in my letter of 2 March 2007, I cannot accept a Notice of Appeal against orders made in February 2006.  It is out of time.  I confirm that it is not appropriate for you to file such an appeal by amending a Notice of Appeal filed in other proceedings.  You may either (a) seek an extension of time to file an appeal against orders made 1 February 2006 or (b) seek a review of my decision to refuse to accept your amended Notice of Appeal.  Both applications should be made by completing the form 2 application forwarded to you in my letter of 2 March 2007.  The application for an extension of time should be supported by an affidavit.  When completed the original and at least one copy for service on the respondent should be forwarded to me for filing in the appeal registry and listed before a Judge of the appeal division. 

19. Having regard to the comments made by Brown J on 29 January 2007, to the effect that the husband was well out of time to file a Notice of Appeal against the orders of February 2006 but it would be possible for him to do so by making application to the court in those terms, the letter from the Appeals Registrar must be the second time that the husband has been advised in writing of what he has to do if he seeks to appeal the orders of February 2006. 

20. In discussion with me, the husband acknowledged that whilst that appeal will be an appeal against a consent order, it is not impossible that he would succeed.  It is not my role, nor my function today, to comment on the prospects of the husband seeking to obtain an extension of time in which to file a Notice of Appeal in relation to a consent order.

21. Whether it be by operation of a stay of the orders made on 1 February 2006 in respect of which there is no appeal, or an application for a stay of the enforcement orders made by Brown J on 14 November 2006, the husband’s application must fail. 

22. First, Brown J has already dismissed an application by the husband for a stay in relation to the orders of November 2006 and the husband has failed to demonstrate any further circumstances which would attract my discretion to reopen the issue of a stay pending his appeal against Brown J’s orders of 14 November 2007.

23. Second, the husband cannot seek a stay of the orders of 1 February 2006 because he has not yet filed an appeal nor obtained permission to do so out of time.  It is clear that a stay may only be sought where an appeal is filed and he has not filed one to date. 

24. By way of a fall back position, the husband submits that ‘for your own good’ I ought not take responsibility for allowing his property in W to be auctioned in 2 days time.  He said to me, "Don't let it rest on your shoulders”. He said that I am a Judge who has only recently received a commission and he urged me to leave it up to the Full Court to determine on appeal as to whether the W property ought to be sold.  Well, I thank the husband for his concern, but conclude that his whole case today is without merit and I reach that conclusion comfortably. 

25. Insofar as the husband submits that I should leave the sale of the W property up to the Full Court, that is a course which could place the wife in further jeopardy given the advice of the Appeals Registrar that the appeal may be summarily dismissed for want of prosecution.  

26. The husband has referred to a number of times to the fact that he has made three applications pursuant to s.79A for a review, which I am taking to mean an application to set aside the orders of February 2006.  The court file reveals only one application.  That was the application determined by Brown J on 14 November 2006.  I note, however, that the husband says that he has further applications under s.79A and he proposes to file them today.  At some point those who the applications by the husband affect, and principally the wife, may have to consider what steps they can take to limit the husband’s entitlement to file documents as of right.  However, that is not part of what I have to consider today. 

27. I dismiss the husband’s application. 

28. The respondent wife seeks her costs be paid by the husband.  She has calculated those costs in the sum of $2027.24 or thereabouts. 

29. I asked the husband to comment on the quantum of costs and also whether he should be required to pay them.  The husband’s response, on a number of occasions, was “the costs are the least of my concerns”.

30. Section 117 of the Family Law Act1975 contains the general rule that each party to proceedings under the Act shall bear his or her own costs.  The object of the Rule is to ensure that spouses are not deterred from bringing or maintaining legitimate applications for fear of incurring an intolerable financial burden if they lose.[1]  However, the Court retains a discretion to make an order for costs if it is of the opinion there are circumstances that justify that course and it would be just to do so. 

    [1] In the Marriage of Kohn (1977) 30 FLR 175 at 177.

31. In considering whether to make an order the Court must have regard to the matters set out in s.117(2A). The weight to be attached to any of the considerations in sub-s.(2A) is wholly discretionary. However, while no single factor out-ranks any other, there is nothing to prevent one or other of them from being the sole foundation for a costs order.[2]  As Kay J observed in Brown & Brown[3] :

    In many cases there will be an outstanding feature . . . that makes an order for costs appropriate, a feature which so dominates the scene that it can outweigh any of the other s 117(2A) considerations.

    [2] LAC and TRF and LKL [2005] Fam CA 158 at [41].

    [3] (1998) FLC 92-822 at 85,347.

32. This application raises the matters in paragraphs 117(2A)(a), (c) and (e).  They are:-

    (a)  the financial circumstances of each of the parties to the proceedings;

    (c)  the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters; 

    (e)  whether any party to the proceedings has been wholly unsuccessful in the proceedings;

    (g)  such other matters as the court considers relevant.

1. Insofar as the financial circumstances of the parties are concerned,

   
   

   the husband contends that this is a case in which the parties own $12 million worth of assets.  I do not know the value of the assets which have been divided between them.  Even if it is $12 million, that is not so much money that either should waste money on legal costs.  I am not convinced that the wife can afford the costs of opposing proceedings which are misconceived.  

2. In the context of s.117(2A)(c), I note that the husband appears on his own behalf. He was disorganised in the presentation of his case. The matter was stood down for an hour whilst he attended upon the Appeals Registrar to obtain a copy of a document which was never filed. He has delayed the hearing today. This is a consideration which favours the exercise of my discretion to order that he pay some of the wife’s costs, however, it is by no means the most significant aspect.

3. In relation to s.117(2A)(e), I am satisfied that the husband was wholly unsuccessful in these proceedings. His application was misconceived. This is the most significant factor in my consideration of the costs application and one which I conclude requires me to accede to the wife’s application.

4. I will order that the husband make a contribution to the wife’s costs of and incidental to her application which was determined on 25 May 2006.  I intend that contribution to be meaningful. 

5. I am disinclined to send this matter to an assessment or a taxation.  Taxation is just another opportunity for the family’s fortune to be eroded by legal costs.  For the parties to incur costs of taxation over a discrete and relatively insignificant interim proceeding such as this cannot, in my view, be justified on the principle of proportionality or the main purpose of the Family Law Rules 2004 as:

   to ensure that each case is resolved in a timely manner at a cost to the parties and to the court that is reasonable in the circumstances of the case.

6. The husband made no submission that the quantum of costs claimed was unreasonable.  If he had anything to say in that regard, he could have said it.  

   
   

   I assume that he would have said it.  The quantum of costs looks reasonable to me having regard to the items claimed.  I will fix the costs at $2,000.  The costs are payable forthwith. 

I certify that the preceding thirty eight (38) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate: 

Date:  9 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as CRAWFORD & CRAWFORD