DBL & GJL

[2007] FamCA 20

FAMILY COURT OF AUSTRALIA

DBL & GJL [2007] FamCA 20

COSTS – Release of monies held as security for costs – Wife lodged sum of $5,000 as security for costs – Wife’s appeal unsuccessful, ordered to pay sum of $3,500 toward husbands costs – Wife lodged application for Special Leave to Appeal to the High Court, sought sum of $5,000 be returned to her – Treated as application for a stay – No reasonable prospect of special leave being granted – Monies to be paid out $3,500 to the husband and the remainder of $1,500 to the wife.

Family Law Act 1975 (Cth)

Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681;  69 ALR 265

APPELLANT: DBL

RESPONDENT: GJL

FILE NUMBER: BRF 4692 of 1993

APPEAL NUMBER: NA 1 of 2006

DATE DELIVERED: 30 JANUARY 2007

PLACE DELIVERED: BRISBANE

JUDGMENT OF: KAY, WARNICK & MAY JJ

HEARING DATE: BY WAY OF WRITTEN SUBMISSIONS

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 8 December 2005

LOWER COURT MNC: [2005] FamCA 1187

SUBMISSIONS RECEIVED FROM

THE APPELLANT: In person

THE RESPONDENT: Twohill Lawyers

Direction

1. That the Registrar of the Family Court of Australia at Brisbane release from the moneys held as security for costs of the appeal the sum of $3500 to the respondent husband in satisfaction of the costs order made by the Court on 30 November 2006 and the balance in the sum of $1500 be returned to the appellant.

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

Appeal Number: NA 1 of 2006
File Number: BRF 4692 of 1993

DBL

Appellant

And

GJL

Respondent

REASONS FOR COSTS JUDGMENT

1. On 8 May 2006 the Full Court made an order requiring Ms L to provide security for costs in the sum of $5000 in relation to her appeal against certain orders made by Carmody J on 8 December 2005.

2. The sum of $5000 was duly lodged by Ms L and the appeal proceeded for hearing on 21 November 2006.

3. On 30 November 2006 the Court ordered that the appeal be dismissed and that the appellant pay the respondent’s costs in the sum of $3500.

4. An issue subsequently arose as to whether the monies held by the Registrar of the Court as security should be released to either of the parties and if so in what amount.  The Full Court then directed that written submissions be filed by the parties as to why the Court should not direct that the monies held as security for costs of the appeal be released as to $3500 to the respondent husband and as to $1500 to the appellant wife.

5. On 22 December 2006 Ms L responded to that request by advising the Court that she had filed an application in the High Court of Australia for special leave to appeal the orders made by the Full Court on 30 November 2006.  Among the orders she seeks in that application is the return of the $5000 security to her.  No further submissions were received from either party relating to the Full Court’s direction.

6. The mere filing of an application for special leave to appeal to the High Court does not act as a stay of enforcement of the orders of the Full Court.  Ordinarily an application has to be made to the Full Court seeking to stay its orders.  Given that Ms L appears as an appellant in person we are prepared for the purposes of these reasons to treat her notification to us of the filing of an application for special leave to appeal in the High Court as an application seeking a stay.  The principles governing the grant of a stay were discussed by Brennan J in Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; 69 ALR 265. His Honour therein indicated that exceptional circumstances must be shown before a stay is granted and that in the exercise of the extraordinary jurisdiction to stay an order the Court should consider amongst other matters whether there was a substantial prospect that special leave to appeal will be granted and where the balance of convenience lies.

7. Whilst the matter is ultimately a question for the High Court, we do not perceive that there is any substantial prospect of the court granting special leave to appeal.  The purpose of requiring security for costs was to ensure that there was a fund available for the costs to be recovered in the event that the appeal was dismissed.  Those circumstances have arisen in this case.  We see no reason why on the balance of convenience the funds should not be disbursed so that the costs are met and the balance returned to the appellant. 

8. When making the order for the provision of security for the costs of the appeal the Full Court also ordered the appellant to pay the respondent's costs of the application fixed in the sum of $1500. The respondent has asserted that the sum of $1420 is still outstanding in respect of those costs and seeks to enforce that order against the monies provided as security for the costs of the appeal.  As attractive as that solution might be to solve any difficulties the respondent might have in enforcing the order, there is nothing before us that would indicate that the moneys provided as security for costs of the appeal are the property of the appellant.  Further, those moneys were provided to secure the costs of the appeal and not any other outstanding costs orders.  In the circumstances any steps to enforce the earlier order will have to follow the appropriate path of an application at first instance. 

9. The Full Court thus directs that the Registrar of the Family Court of Australia at Brisbane release from the moneys held as security for costs of the appeal the sum of $3500 to the respondent husband in satisfaction of the costs order made by the Court on 30 November 2006 and the balance in the sum of $1500 be returned to the appellant.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of this Honourable Full Court

Associate: 

Date:  30 January 2007