Dunwell & Ors and Dunwell (Stay Application)

[2010] FamCA 500

FAMILY COURT OF AUSTRALIA

DUNWELL AND ORS & DUNWELL (STAY APPLICATION) [2010] FamCA 500

FAMILY LAW – PROPERTY – STAY APPLICATION – Stay of proceedings pending appeal of decision of Judge not to disqualify himself

Family Law Act 1975 (Cth)

APPLICANT: Ms Dunwell

2^nd APPLICANT: Mulligan Solicitors

3^rd APPLICANT: Mr Volker

4^th APPLICANT: Ms James

RESPONDENT: Mr Dunwell

FILE NUMBER: SYC 8682 of 2007

DATE DELIVERED: 9 June 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Le Poer Trench J

HEARING DATE: 9 June 2010

REPRESENTATION

COUNSEL FOR THE 1^ST, 2^ND, 3^RD & 4^TH

APPLICANTS:

Dr Harper SC
Mr Gould

SOLICITOR FOR THE APPLICANTS: Mulligan Solicitors

COUNSEL FOR THE RESPONDENT: Mr Richardson SC
Mr Beaumont

SOLICITOR FOR THE RESPONONDENT: Barkus Doolan Kelly

Orders

1. Pending the determination of the Appeal lodged by the wife and her solicitors on 3 June 2010, or further order of the Court, the proceedings are stayed.

2. The stay is conditional upon the following:

   (a)That the applicants jointly and severally undertake to the Court, that should the appeal be unsuccessful, they will pay the husband’s costs on an indemnity basis, in respect of this application and the costs thrown away in respect of the hearing fixed for 9 and 10 June 2010, including preparation.

   (b)Without prejudice to the wife’s rights under the Family Law Rules 2004 (Cth) in respect of the single expert, the wife consents to the husband providing to the single expert all information necessary to satisfy the inquiries of Y Financial Services, on terms that pending determination of the husband’s application filed 24 February 2010, he not be required to provide that information to the wife or her solicitors, but will provide the information to her solicitors if his application is unsuccessful, or to her new solicitors, should the application be successful.

3. The Court notes the undertaking required by condition 2(a) hereof, has been given to the Court on behalf of each applicant (appellant) by their counsel, Dr Harper SC.

4. The Court notes that the wife has consented to condition 2(b) through her counsel, Dr Harper SC.

5. Should the appeal lodged on 3 June 2010 not have been determined by the Full Court, prior to 1 September 2010, then the husband has leave to apply to set aside the stay order made today.

6. To the extent that it may be necessary, I reserve each party’s costs of the stay application, and costs of attendance at court today, and 10 June 2010.

IT IS NOTED that publication of this judgment under the pseudonym Dunwell and Ors & Dunwell (Stay Application) approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8682 of 2007

MS DUNWELL

Applicant

MULLIGAN SOLICITORS

2^nd Applicant

MR VOLKER

3^rd Applicant

MS JAMES

4^th Applicant

And

MR DUNWELL

Respondent

REASONS FOR JUDGMENT

1. Before the Court is an application by the wife, Mulligan Solicitors, Mr Volker and Ms James (“the applicants”) for a stay of the proceedings pending the determination of the appeal lodged by them on 3 June 2010 against my refusal to disqualify myself from further hearing the proceedings. 

2. Each party has presented written submissions and also addressed the Court orally.  The applicants rely on the Application in a Case filed 4 June 2010, and an affidavit filed by the wife on 4 June 2010.  At the conclusion of the oral submissions, it was conceded by the applicants that subject to some modifications, referred to hereafter, the conditions sought by the husband in paragraph 10(a) of his written submissions ought to be made.

3. The Court was asked to accept undertakings and consent to those conditions through the applicants’ counsel.  The only portion of paragraph 10(a), which is the subject of contention is that sought by the wife as an addition to the conditions set out in subparagraph 10(a)(ii) as follows:

   And on condition that the single expert hand down no interim or final report whilst this condition is operative.

4. In further argument it was conceded by the applicants’ counsel that no prejudice would flow from the issue of an interim report by the single expert, provided that the single expert was appraised of the fact that the wife and her legal representatives had not seen the information provided to the single expert between the date of any stay and the date of the release of any interim report. 

5. I add here that it could well be the case that the husband would oppose any interim report being provided prior to the determination of his application filed 24 February 2010, as any such report would probably refer to some of the information provided by the husband pursuant to the stay condition. 

6. The applicants’ case is well articulated in written submissions.  In oral submission, the applicants said it would be most undesirable that the Court proceed to hear and determine any further aspect of the case when there is the prospect that the Full Court will allow the appeal of the applicants.  In such circumstances, there would be a necessity for re-hearing before a different judicial officer. The husband’s case is that any re-hearing would only be required if the husband was successful in his application. 

7. The applicants argue that if the application proceeded and was heard and determined before the Appeal was heard or determined, then should the husband be successful, the wife would need to instruct new solicitors to run her appeal.  The husband’s counter to that is to place on the record that the husband would not oppose the wife’s current solicitors representing her and themselves on the Appeal.

8. The husband submits that the application for a stay ought not to be entertained where the applicants do not have a competent application before the Full Court. The husband says section 94AA of the Family Law Act1975 (Cth) requires that leave be granted before an appeal can be heard by the Full Court in a contest of the nature in this case. That is so, he says, notwithstanding the provisions of section 94(1AA). Section 94(1AA) does not obviate, it is submitted, the need for leave to be obtained to appeal an order dismissing an application for disqualification. To support that submission, the husband points to the provisions of section 94AA(2).

9. I accept the argument of the husband on this point, and accept that it is correct.  However, as a matter of practicality, I consider it highly unlikely that the appellants would not be permitted to amend their case to include an application for leave in the face of the Full Court. 

10. Many of the arguments made on each side of this application I find to have merit.  In the finality, the conclusion comes down to a weighing of comparative prejudice and a consideration of practical matters.

The Prejudices

1. So far as the husband is concerned, I consider the prejudices which flow to him from the granting or refusing a stay are as follows:

   (1)That he will be delayed in having his application of 24 February 2010 determined.  This is likely to be a stressful matter for him.

   (2)That a re-hearing of the husband’s application might be occasioned should the application be successful, and should the appellant’s appeal be successful.

   (3)He will incur cost whether the hearing of his application proceeds or does not proceed (this is now dealt with by the consent to the condition that might be imposed should a stay be granted).

   (4)The husband has prepared for the hearing listed for the next two days.  Costs will be lost if it does not proceed.

   (5)The Appeal may not be disposed of promptly, thus delaying the case further. In relation to this point the prejudice so identified could be protected against by granting leave to the husband to apply to set aside the stay after a specified period of time if there had been no determination of the Appeal.

2. So far as the wife is concerned, I can see that the following prejudices flow to her by either the granting, or refusal to stay the proceedings pending the outcome of her Appeal:

   (1)That the hearing may give rise to the loss of her legal representatives.  If that be so, and the appeal be granted, she will face a re-hearing.

   (2)She will continue to have her case heard by me in circumstances where she does not have the certainty of the result of the appeal to instruct her view as to the correctness of my determination on the disqualification application.

3. I note the wife is prepared to subject herself to circumstance where she will not be privy to the information provided to the single expert during the period between the granting of a stay and the determination of the husband’s application filed 24 February 2010. This is, in my view, a considerable detriment to her.

4. The prejudice which flows to the balance of the applicants is that if the application of the husband is determined against their application then they would be prevented from acting further for the wife and may have a costs order made against them. If their appeal is successful then they would face a further hearing of the husband’s application before another judge.

Prejudice to the Litigation Population of the Court

1. A result which grants the stay or refuses it will not impact adversely, in my view, upon the other litigants in this Court.  It was submitted on behalf of the husband that failure to have the case determined uses time which cannot be adequately taken up in other causes.  However, the days set aside this week by me to hear and determine this case were originally allocated as judgment writing days in my diary.  I gave up those days in order to accommodate the hearing of a part-heard application.  I will return to writing judgments in the time not taken up by the hearing of this case.

Delay

1. I am satisfied the applicants have taken all reasonable steps to have the Appeal heard as soon as possible.  There is a listing this Friday for the hearing of an expedition application, which the husband says will not be opposed.  The applicants have undertaken in the letter, now comprising Exhibit “A”, and also in open Court, to press the appeal expeditiously.  I accept the submissions of the applicant that there was not undue delay in the filing of the application. 

Balancing the Considerations 

1. There is no dispute that I have power to grant the stay and also to grant it on conditions.  Weighing up all of the specified prejudices, which I see as significant for both the husband and the wife in particular, and all of the other matters set out in the parties’ submissions, I conclude that the exercise of discretion should fall in favour of the stay, upon conditions referred to in these Reasons.  I further consider that the husband should have leave to apply to set the stay aside, should the determination by the Full Court of the Appeal not have been handed down by 1 September 2010. 

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench

Associate: 

Date:  22 June 2010