D & D

[2006] FamCA 339

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA

AT BRISBANE Appeal No. NA 37 of 2005

NA 98 of 2005

File No. BRF 1325 of 2002

BETWEEN:

Appellant Husband

-and-

Applicant/ Respondent Wife

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM: Finn, Coleman and May JJ

DATE OF HEARING: 9 August 2005;
Further written submissions from the respondent wife filed 7 September 2005

DATE OF JUDGMENT: 12 May 2006

APPEARANCES:

Dr Sayers of Counsel (instructed by Whitehead Payne Lawyers, 26 Nerand Street, Nerang, QLD, 4211) appeared on behalf of the applicant/ respondent wife.
Mr O’Neill of Counsel (instructed by Stacks/Gray Lawyers, 3171 Gold Coast Highway, Surfers Paradise, QLD, 4217) appeared on behalf of the appellant husband.
Ms McArdle, solicitor (Legal Aid Queensland, 44 Herschel Street, Brisbane, QLD, 4000) appeared on behalf of the Child representative.
Mr Cowen, solicitor (Tucker & Cohen Solicitors, GPO Box 345, Brisbane, QLD, 4001) appeared on behalf of the Trustees in Bankruptcy of the appellant husband.

APPEAL SUMMARY

MATTER:D v D

APPEAL NUMBER: NA 37 of 2005; NA 98 of 2005

CORAM: Finn, Coleman and May JJ

DATE OF HEARING: 9 August 2005;
Further written submissions from the respondent wife filed 7 September 2005

DATE OF JUDGMENT: 12 May 2006

CATCHWORDS:

FAMILY LAW – SUMMARY DISMISSAL OF APPEAL – whether the husband’s notice of appeal contained competent grounds of appeal – operation of s 96AA.
FAMILY LAW – SECURITY FOR COSTS OF APPEAL – application by the wife for security for costs – wife relied primarily on fact that the husband was an undischarged bankrupt, and as such impecunious – security for costs granted as charge against any funds payable to the husband by his Trustees in Bankruptcy.

Caselaw cited:

Bigg v Suzi (1998) FLC 92 – 799

Jones v Jones (2001) FLC 93–080

Legislation cited:

Family Law Act 1975 (Cth); s 96AA

Application for the dismissal on a summary basis of the appeal dismissed.
Application for security for costs granted.

Introduction

These reasons for judgment are concerned with applications by the wife, who is the respondent to an appeal filed by the husband, for orders that the appeal be “struck out” because of the absence of proper grounds of appeal or alternatively that the husband or his “estate in bankruptcy” provide security for the wife’s costs in relation to the appeal.

Background to the applications

The background to these somewhat unusual applications by the wife is as follows.
The husband and the wife separated in October 2001 after a marriage of some 18 years, which had produced two children.
On 7 July 2004 the husband was declared bankrupt and accordingly his assets vested in his trustee in bankruptcy save for certain assets which were already the subject of a receivership.
In the first half of April 2005 Carmody J heard property and parenting proceedings between the husband and the wife.
On 11 May 2005 his Honour delivered reasons for judgment and made orders which essentially provided:
·that the husband should not have any contact with the two children of the marriage, save for contact initiated by the children (who at that time were aged 14 and 12); and
·that on “the conclusion of the administration and management by the husband’s trustee-in-bankruptcy and the receiver” that the net property available for distribution between the parties be apportioned 62.5% to the wife, with the balance to the husband, and with the husband’s estate in bankruptcy and the assets in possession of the receiver to be charged with the liability to the wife, with such charge to be satisfied by the payment of 62.5% of the residue to the wife before any distribution to the husband.
His Honour’s orders (Order 15) also provided that “judgment in relation to the oral applications made by the subpoenaed witnesses [Mr G] and [Mr D] be reserved”.
On 3 June 2005 the husband filed a notice of appeal stated to be against all orders made by Carmody J on 11 May 2005. The grounds of appeal contained in the husband’s notice of appeal were as follows:
1.The judge failed to take into account relevant material and failed to give adequate weight to material that he did take into account.
2.The judge failed to draw the proper inferences that arose from the findings of fact.
3.The costs orders in respect of [Mr G] were unwarranted and wrong in law.
4.The judge erred in not making an order that would facilitate contact between the appellant and his children.
The orders sought in the husband’s grounds of appeal were as follows:
1.That the respondent’s share of the matrimonial property be reduced to 50 percent.
2.That the respondent be solely responsible for the receiver’s costs out of her share of the matrimonial property.
3.That the costs order in favour of [Mr G] be quashed.
4.That the respondent pay the appellant’s costs of the action and this appeal on an indemnity basis.
5.The [appellant] have contact with the children.
On 24 June 2005 the husband filed a pre-argument statement (as is required under Rule 22.14 of the Family Law Rules 2004) which was signed by his Counsel.
There was a procedural hearing before Warnick J on 13 July 2005. It appears from the transcript of that hearing that the wife may already by that date have filed an application for security for her costs of the appeal, and that her Counsel foreshadowed an application to strike out the notice of appeal on the basis that the notice did not disclose “any true grounds of appeal”.
In the event Warnick J made orders for “the proposed application seeking dismissal of the appeal” to be heard together with the application for security, by the Full Court at its next sittings in Brisbane. However, his Honour also gave the husband leave to file an amended notice of appeal by 20 July 2005, in order, it would seem, for the grounds of appeal to be re-drafted thereby making it unnecessary for the application for the dismissal, or striking out, of the appeal to be pursued.
On 20 July 2005 the Husband filed an amended notice of appeal which contained the following grounds:
1.The Learned Judge erred in fact and in law in ordering that:
a.The father not have any contact with the children save and except for contact that is initiated by the children (order 2); and
b.The father be restrained from initiating any communication or contact with the children directly or indirectly through any third party or institution (order 3).
2.The Learned Judge erred in fact and law in ordering that the net property available for distribution be apportioned 62.5 percent to the wife and the balance to the husband (order 9).
3.The Learned Judge erred in fact and in law in not being satisfied (paragraphs 152-153 of Judgment) that the matters listed (and omitted) constituted a civil conspiracy to defraud the Appellant.
4.The Learned Judge erred in fact and law in ordering that the witness [Mr G] be awarded costs (Order 1 of 19.05.2005).
The orders sought in the amended notice of appeal were as follows:
1.That the respondent’s share of the matrimonial property be reduced to 40 percent.
2.That the respondent be solely responsible for the receiver’s costs out of her share of the matrimonial property,
3.That the costs order in favour of Mr G be quashed.
4.That the respondent pay the appellant’s costs of the action and this appeal on an indemnity basis.
5.That father/ appellant have contact with the chidlren (sic).
On the same day (20 July 2005), the wife filed an application (together with supporting affidavits) seeking the following orders:
1.That the Notice of Appeal of the Appellant Husband filed 3 June 2005 be struck out or otherwise disposed of on a final basis.
2.That the Husband pay the Wife’s costs of and incidental to the Hearing of 13 July 2005 before Warnick J on an indemnity basis.
3.That pursuant to s 117(2) of the Family Law Act 1975 that either:
(a)Within thirty (30) days of the date of these Orders, the Appellant Husband pay into the Wife’s solicitors Trust Account in the joint names of the parties, such sum as may be determined by this Honourable Court by way of security for the Respondent Wife’s costs, to abide the determination of the appeal by the Full Court and, in the event the Appellant Husband fails to comply with this Order, his Notice of Appeal filed 3 June 2005 is dismissed; or
(b)The Appellant Husband’s estate in Bankruptcy be charged, in the alternative, that the property in the Receivership of [Mr D] be charged, in an amount as determined by this Honourable Court, to pay the Respondent Wife’s costs of and incidental to this appeal with such charge declared to take priority over or be charged against any funds otherwise payable to the Appellant Husband by respectively, his Trustee in Bankruptcy or the Receiver.
4.That the Husband pay the Wife’s costs of and incidental to this application on an indemnity basis or as otherwise ordered by this Honourable Court, such Order to be charged against the Husband’s estate in Bankruptcy and the assets in possession of the Receiver and that the Trustee and the Receiver satisfy the charge and pay such costs directly of the Wife before any distribution to the Husband.
On 5 August 2005 the husband filed a response (together with a supporting affidavit) seeking that the wife’s application filed 20 July 2005 be dismissed.
We heard the wife’s application for dismissal of the appeal or alternatively for security for her costs of the appeal on 9 August 2005. As an issue arose during that hearing as to what had transpired at the directions hearing before Warnick J on 13 July 2005, it was necessary for us to order that transcript of that hearing be prepared and provided to the parties.
We made directions for further written submissions from the parties in relation to any matter arising out of the transcript which was relevant to the applications which had been heard by the Court and to any submission made in support of, or in opposition to, those applications.
Ultimately it was only the wife who filed any further submissions, and this she did on 7 September 2005.

The position of the husband’s Trustees in Bankruptcy

At the hearing before us on 9 August 2005 in addition to appearances by Counsel for the applicant/ respondent wife, Counsel for the appellant husband, and the Children’s Representative, there was also an appearance by the solicitor for the husband’s two trustees in bankruptcy. There was no appearance by Mr G (which is a matter we will return to at the conclusion of this judgement).
The solicitor for the trustees informed us that the only purpose of his appearance was to ensure that if the charge sought in Order 3(b) of the wife’s application (see paragraph 15 above) was to be granted, then such a charge should only attach to the husband’s residual interest in the estate after payment of all creditors and the fees of the trustees. We understood Counsel for the wife to concede that such a charge should be so limited.
In this context, Counsel for the wife also explained that the intent behind Order 3(a) sought by the wife was – having regard to the husband’s position as a bankrupt – that a third party might lodge on his behalf any security ordered to be paid.
Also in this context we were able to confirm that no party raised any issue concerning the standing of the husband to pursue his appeal – it being accepted that the property of the husband in the property settlement proceedings and the appeal, was his interest in any surplus in the estate after the finalisation of his bankruptcy.
After these various matters were clarified, the solicitor for the trustees was excused from further attendance before us.

The operation of s 96AA of the Family Law Act

At an early stage during the hearing on 9 August 2005 and during the submissions of Counsel for the wife in support of the application for a summary dismissal of the appeal on the basis of the absence of competent grounds of appeal, the question arose as to whether s 96AA (which had only been inserted into the Family Law Act 1975 (“the Act”) earlier in 2005 by No 98 of 2005), had any application to the present case. Section 96AA is in the following terms:
96AA.If it appears to a court hearing an appeal under this Part that the notice of the appeal does not disclose proper grounds of appeal (whether generally, or in relation to a particular ground of appeal), the court may order that the proceedings on the appeal be stayed or dismissed (either generally or in relation to that ground).
However, as the hearing progressed, and particularly in light of the submissions of Counsel for the husband, we were persuaded that s 96AA could have no operation in this case because the appeal had not been listed before us for hearing .
We comment in passing that we have some difficulty in understanding what practical utility (if any) s 96AA has. Indeed, it seems to us that it may well be a source of difficulty. This is because we consider that it would always have been open to an appellate court to dismiss an appeal where the notice of appeal disclosed no proper grounds of appeal, and that such a dismissal could occur at an interlocutory hearing before that court prior to the appeal being listed for hearing.
However, the effect of this new provision would seem to be that it is only the appellate court before which the appeal is listed for hearing, which can dismiss the appeal on the basis of lack of proper grounds of appeal. In practice, this will mean that a respondent seeking to have an appeal dismissed on the basis that the notice of appeal disclosed no proper grounds, will always have to come to the appeal court ready to argue the appeal in full, in case the court does not agree that there are no proper grounds of appeal disclosed in the notice of appeal.
Because of the view which we ultimately take concerning the wife’s application for the summary dismissal of the husband’s appeal, it is unnecessary that we say more regarding the operation of s 96AA. Similarly, we need no say more about the impact of s 96AA on any inherent power, or perhaps more correctly, implied power (see the observations of the High Court in DJL v The Central Authority (2000) 201 CLR 226, at paragraphs 25 to 27), which an appeal court might have to dismiss on a summary basis an appeal brought on the basis that the notice of appeal does not disclose proper grounds of appeal, or indeed for any other reason.
We would explain, however, that the submissions of Counsel for the wife proceeded on the assumption that there was an inherent or implied power to dismiss or strike out the husband’s appeal on the basis that the notice of appeal disclosed no proper grounds of appeal. Again, because of the view which we ultimately take concerning the wife’s application, we are also able to proceed on that assumption. In other words, we assume (but do not decide) the existence of such a power for the purpose of determining the application before us.

The wife’s case for summary dismissal of the appeal

Notwithstanding the language used in paragraph 1 of the wife’s application (being that the notice of appeal be “struck out”), her Counsel’s submissions (both written and oral) were framed in terms of the dismissal of the appeal on a summary basis. In our view Counsel’s approach was correct in this respect, having regard to the discussion by the Full Court in Bigg v Suzi (1998) FLC 92 – 799 (at paragraphs 5.1 to 5.4). We note also with regard to that discussion by the Full Court, that the Family Law Rules 2004 provide only for the “striking out” of objectionable material in an affidavit (Rule 15.13); they do not otherwise contain any concept of “striking out” in relation to either a proceeding or a document filed in a proceeding.
Counsel for the wife also made it clear at an early stage that his submissions were not directed in any way to the husband’s ground of appeal which concerns the costs order made in favour of Mr G (being Ground 3 of the original notice of appeal and Ground 4 of the amended notice of appeal). In other words, Counsel for the wife was only concerned with the three remaining grounds which can be seen as concerned with the trial Judge’s orders and reasons in relation to the parenting and property issues between the husband and the wife.
The essential submission of Counsel for the wife in support of the application for summary dismissal of the appeal against the parenting and property orders, was that none of the grounds contained in the original or amended notices of appeal raised (other then by inference and then without sufficient particularity) any of the limited but well-settled grounds of appeal which are available to challenge a discretionary judgment. Those grounds were summarized in Counsel’s written submissions as being that the trial Judge was influenced by irrelevant factors, overlooked relevant factors, provided inadequate reasons, decided contrary to the weight of the evidence, or exhibited bias or procedural unfairness in respect of the appellant.
It was further submitted by Counsel that on their face, the amended grounds of appeal would effectively seek a complete rehearing of all the evidence and issues agitated at trial.
However, the difficulty which Counsel for the wife recognized – at least as we apprehended his submissions – was that in Bigg v Suzi, the Full Court had been faced with grounds of appeal which were at least as general and non-specific (if not more so) than the grounds contained in the amended notice of appeal in the present case. The grounds in the notice of appeal in Bigg v Suzi were as follows:
1.That the decision was wrong in and contrary to law.
2.The decision was against the evidence and the weight of the evidence.
3.His Honour erred in finding that there were not facts which established a miscarriage of justice or that the facts were insufficient to constitute a claim pursuant to Section 79A.
However, the Full Court in Bigg v Suzi was prepared to look to the outline of argument filed on behalf of the appellant to ascertain the real substance of the appeal in that case. In so doing, the Full Court observed at paragraph 6.2:
6.2It will be observed that those grounds are quite general and non-specific. However, the real substance of the husband's appeal was much more clearly and precisely defined in the written ''Outline'' of argument prepared by his counsel and filed (pursuant to O 32, r 16B of the Family Law Rules) on 1 October, 1997. No objection was taken by counsel for the wife that the husband's case, as defined in that ''Outline'' and as developed by his senior counsel in oral submissions at the hearing of the appeal, was not within the ambit of the grounds contained in the Notice of Appeal, or took the wife by surprise. Accordingly, in this judgment we may, for all practical purposes, disregard the formal grounds of appeal and concentrate upon the specific issues raised by the husband's ''Outline'', and developed in oral argument. Those issues were specifically responded to in the written ''Outline of Argument'' filed on behalf of the wife on 3 October, 1997, and in the oral submissions of her senior counsel.
In the present case, Counsel for the wife submitted that while there was as yet no summary of argument (since such a document is not required to be filed, pursuant to Rule 22.26 of the Family Court Rules 2004, until 14 days before the first day of the Full Court sittings in which the appeal is listed for hearing), there was a pre-argument statement (which as we earlier stated was filed by the husband on 24 June 2005 in accordance with Rule 22.14). However, Counsel then endeavoured to establish that the pre-argument statement did not assist in an understanding of the original grounds of appeal, which were the grounds to which the pre-argument statement was directed.

In the course of that exercise, Counsel appeared to concede that Ground 2 of the original notice of appeal when considered with the relevant section of the pre-argument statement, might approach a “recognisable ground of appeal”. That particular ground found expression as Ground 3 in the amended notice of appeal, asserting error on the part of the trial Judge in his failure to be satisfied that certain matters had constituted a civil conspiracy (involving the wife) to defraud the husband. However, Counsel also endeavoured to establish that such a ground would be entirely without merit, and that therefore the appellant’s position had not been remedied by the amended notice of appeal.
Counsel also submitted (particularly in his written submissions filed once the transcript of the proceedings before Warnick J on 13 July 2005 was available) that no further indulgence should be granted to the husband in respect of his grounds of appeal, because the husband had had sufficient warning from Warnick J concerning the inadequacy both of his original grounds of appeal and of his pre-argument statement, and then sufficient opportunity pursuant to the leave granted by Warnick J to file an amended notice of appeal.

Conclusion in relation to the application for summary dismissal of the appeal

So far as Ground 3 contained in the amended notice of appeal is concerned, we are not persuaded that that ground is not a valid ground of appeal. In our view an appellant can validly assert as a ground of appeal that a trial Judge has erred in the appellate sense in failing to find that a civil conspiracy existed given certain specified findings of fact by the trial Judge.
Given our conclusion in relation to Ground 3, the wife’s case for the summary dismissal of the appeal must fail. We stress, however, that in concluding that Ground 3 constitutes a valid ground of appeal, we are not to be taken as expressing any view on the merits or likely prospects of success of that ground of appeal.
So far as Grounds 1 and 2 contained in the amended grounds of appeal are concerned, we regard them as being of no assistance at all. They do no more than assert that the trial Judge was wrong in reaching the decisions which he did regarding contact between the husband and the children and regarding the percentages for the division of the parties’ property. The grounds in question do not particularize what error or errors the trial Judge is alleged to have made.
Nevertheless, had Grounds 1 and 2 been the only grounds contained in the amended notice of appeal, we would have considered it premature to dismiss the appeal on a summary basis. This is because the appellant husband has yet to file his summary of argument, which unlike the pre-argument statement, is a document to be relied upon at the hearing of the appeal. Where the summary of argument for use at the hearing of the appeal does not provide any indication of the errors asserted to have been made by the trial Judge, it would then be open to a respondent to an appeal to seek the dismissal of the appeal by the Full Court – although s 96AA would indicate that this could only be done at the time when the appeal is before the Full Court for hearing. We would observe that, unless an appeal obviously lacks potential substance, it is preferable that it be dismissed on its merits, no matter how inelegant the drafting of the relevant notice of appeal.

The wife’s application for security for costs in relation to the appeal

In support of the wife’s alternative application for security for her costs in connection with the husband’s appeal (as sought in orders 3(a) and (b) of her application filed 20 July 2005), her Counsel relied first on the fact that the husband is an undischarged bankrupt, and as such is impecunious. In relation to this first matter reliance was placed on the decision of the Full Court in Jones v Jones (2001) FLC 93–080 (at paragraph 21), to the effect that, in the case of appeals, there is an exception to the general rule that the impecuniosity of a litigant is not of itself a basis to provide security.
The second matter relied on by Counsel in support of the application for security was the failure of the husband to define properly his grounds of appeal. In other words, the matters which formed the basis of the wife’s primary application for the appeal to be summarily dismissed were also relied on in support of the wife’s application for security.
A further matter relied on was the husband’s past recalcitrance in paying costs orders – although it of course had to be conceded that those costs orders had become debts in the husband’s bankruptcy.
Counsel for the wife conceded before us that the wife’s application for security had been filed outside the period required under Rule 22.49 for the filing of such an application (being 21 days after service on the respondent of a notice of appeal) and that therefore she might require an extension of time in relation to the filing of the application of security. However, Counsel contended that such time should more properly be seen as running from the date of the pre-argument statement or from the amended notice of appeal. In the alternative, Counsel submitted that there could be no prejudice to the husband in any lateness of the filing of the application for security, given that notice had been given of that application at the procedural hearing before Warnick J.
It is true, as Counsel for the husband emphasized, that the Rules provide that time for the filing of an application for security in relation to the costs of an appeal runs from the service of a notice of appeal and not from any other later date. It is also true, again as emphasized by Counsel for the husband, that the wife did not file any application seeking an extension of time to file an application for security. We did, however, indicate during the hearing before us that we would proceed on the basis that Counsel for the wife had made an oral application to us for an extension of time in which to file an application for an order for security in relation to the costs of the appeal.

Conclusion in relation to application for security

It has to be said that it was unfortunate that the wife’s legal advisers did not file her application for security within the time prescribed by the Rules. It was also unfortunate that they apparently did not consider it necessary to file an application seeking the necessary extension of time (even on a retrospective basis). However, it seems that these shortcomings were not adverted to by either side at the procedural hearing before Warnick J on 13 July 2005 ( – we intend no criticism of his Honour in this regard). Further, we do no see that the husband would suffer any prejudice if we were to grant the necessary extension of time, and indeed we did not understand his Counsel to rely on any prejudice in opposition to the grant of an extension of time.
Having regard to the two matters just mentioned, and also to the considerable merit which we see in the wife’s application for security, we propose to grant the necessary extension of time.
As just indicated, we see considerable merit in relation to the wife’s application for security. We do so primarily because of the appellant husband’s position as an undischarged bankrupt. While some optimism was expressed before us as to the likelihood of a surplus being available at the end of his bankruptcy, there was no material before us which would cause us to be confident of such an outcome. Should the appeal fail and should the wife receive a costs order in her favour, there would thus be a considerable risk that the orders would not be satisfied.
Moreover, having regard to the matters canvassed earlier in this judgment in relation to the wife’s application for a summary dismissal of the appeal, we are certainly not able to conclude that the appeal has significant prospects of success.
Accordingly, we consider it appropriate to order security for any costs that the wife may be awarded in relation to the appeal.

Form of the order for security

We are not disposed, given the husband’s status as a bankrupt, to make an order for an actual sum of money to be lodged by way of security for the wife’s costs by or on behalf of the husband (as sought in Order 3(a) of the wife’s application).
The only course available to provide the wife with some security for any costs in relation to the appeal which she may ultimately be awarded, is to grant a charge in terms somewhat similar to that sought in Order 3(b) of the wife’s application (filed 20 July 2005). For convenience we will repeat the terms of paragraph 3(b):
The Appellant Husband’s estate in Bankruptcy be charged, in the alternative, that the property in the Receivership of [Mr D] be charged, in an amount as determined by this Honourable Court, to pay the Respondent Wife’s costs of and incidental to this appeal with such charge declared to take priority over or be charged against any funds otherwise payable to the Appellant Husband by respectively, his Trustee in Bankruptcy or the Receiver.
As discussed during the hearing before us, the charge could only be over any residue available for the husband after the finalization of the bankruptcy, including payment of all monies due to creditors and of all fees and charges of the trustees, and, it now occurs to us, also after payment of the monies due to the wife under the trial Judge’s property settlement orders (which liability is in any event subject to a charge granted by the trial Judge, but which is also of course subject to the appeal).
Also as discussed during the hearing, Order 3(b) as drafted seems to proceed on the basis that the wife will definitely have an entitlement to have her costs incurred in relation to the appeal, paid by the husband. However, her entitlement to such costs could only arise if an order for costs is made by the Full Court which hears the appeal after the determination of the appeal.
Paragraph 3(b) as drafted also suggests that the entire amount of any costs awarded to the wife will be secured. The usual order for security for a respondent’s costs of an appeal is for a fixed sum, commonly $5,000. We propose to adopt that course in this case.
Further, Order 3(b) as drafted refers also to a charge over the property which is the subject of the receivership. As there was no appearance by or on behalf of the receiver before us, nor any material before us concerning his attitude to such a charge, we do not propose to extend the charge to cover the property which is the subject of the receivership.
We propose, therefore, to make an order in the following terms:
“That the appellant husband’s estate in bankruptcy be charged in the sum of $5,000 as security for the payment of any costs which the husband may be ordered to pay to the wife in respect of costs incurred by the wife in relation to the appeal, with such charge to take priority over, or be charged against, any funds payable to the appellant husband by his trustees in Bankruptcy (after payment of all creditors, all fees and charges payable by and/ or due to the Trustees, and any amounts due to the wife under the orders of 11 May 2005, subject to any variation to those orders by the Full Court).”
Having regard to the comments made by us in paragraphs 56 to 59 above, we consider it prudent to give all parties concerned a period of 14 days to consider the order in question before it is made. We will therefore stay the order for a period of 15 days.

The appeal against the costs order in favour of Mr G

We have earlier referred to the fact that the husband’s original and amended notices of appeal each contained a ground directed to a costs order made (apparently on 19 May 2005 by Carmody J) against the husband and in favour of a Mr G (who we understand is an accountant who was a witness in the first instance proceedings). Both notices of appeal sought the discharge of that order. It appeared from what we were told during the hearing that Mr G has had no notice of the appeal against the costs order in his favour.
As we indicated when the matter was before us, the appeal in relation the orders made in favour of Mr G will not be able to be heard by the Full Court until the notice of appeal is served on him and directions made for his participation on the appeal.

Costs of the proceedings before Warnick J on 13 July 2005 and before the Full Court on 9 August 2005

In the wife’s application (filed 20 July 2005) she seeks as Order 2 an order that the husband pay her costs on an indemnity basis of, and incidental to, the hearing on 13 July 2005 before Warnick J.
By Order 6 of his orders of 13 July 2005, Warnick J reserved the costs of that day to the Full Court. We assume that his Honour intended that such costs would become part of the costs of the wife’s applications for summary dismissal of the husband’s appeal or for security for her costs in relation to that appeal, being the applications which Honour had referred to the Full Court by Order 1 of his orders of 13 July 2005.
Also in her application (filed 20 July 2005) the wife sought that the husband pay (again on an indemnity basis) her costs in relation to that application and also that such costs be subject to a charge on the husband’s bankrupt estate.
As we indicated at the conclusion of the hearing of the wife’s applications on 9 August 2005, we propose to include in our orders which give effect to this judgment, directions for the filing of written submissions in relation to the costs of and incidental to the hearing of those applications, and also of the procedural hearing before Warnick J on 13 July 2005.

ORDERS OF THE COURT:

That the time permitted to the wife under the Family Law Rules 2004 for the filing of an application for an order for security in relation to the costs of the appeal by the husband against the orders of the Honourable Justice Carmody of 11 May 2005 (“the appeal”) be extended to 20 July 2005.
That the appellant husband’s estate in bankruptcy be charged in the sum of $5,000 as security for the payment of any costs which the husband may be ordered to pay to the wife in respect of costs incurred by the wife in relation to the appeal, with such charge to take priority over, or be charged against, any funds payable to the appellant husband by his trustees in Bankruptcy (after payment of all creditors, all fees and charges payable by and/ or due to the Trustees, and any amounts due to the wife under the orders of 11 May 2005, subject to any variation to those orders by the Full Court).
That the operation of Order 2 of these orders be stayed for a period of 15 days from the date of these orders.
That all parties, including the husband’s trustees in bankruptcy, have a period of 14 days from the date of these orders to advise the Northern Regional Appeals Registrar if they wish to be heard in relation to the form of Order 2 of these orders.
That the wife’s application for the dismissal on a summary basis of the appeal (as contained in paragraph 1 of her application filed 20 July 2005) be dismissed.
(a) That within 28 days of the date of these orders all parties be at liberty to file and serve any written submissions in relation to the costs of and incidental to the hearings on 13 July 2005 and 9 August 2005 in relation to the wife’s application for the summary dismissal of the appeal or alternatively for security for her costs in relation to the appeal.
(b)That each party have a further 28 days in which to file and serve any written submissions in answer to any submissions filed by the other party.
(c)That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.

I certify that the preceding 67 paragraphs are a true copy of the reasons for judgment of this Honourable Full Court

[2006] FamCA 339

12 May 2006

Key Legal Topics

Areas of Law

Civil Procedure

Administrative Law

Legal Concepts

Appeal

Judicial Review

Jurisdiction

Procedural Fairness

Standing