Farnell v Penhalluriack
[2010] VSCA 305
•17 November 2010
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2008 3821
| PATRICIA FARNELL | |
| Appellant | |
| v | |
| FRANCIS WILLIAM PENHALLURIACK (AS EXECUTOR OF THE ESTATE OF MALCOLM HILARY CHIPPERTON, DECEASED) | Respondent |
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JUDGES: | MANDIE and HARPER JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 November 2010 | |
DATE OF JUDGMENT: | 17 November 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 305 | |
JUDGMENT APPEALED FROM: | Farnell v Penhalluriack (No 2) [2008] VSC 214 (Bell J) | |
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PRACTICE AND PROCEDURE – Appeal stayed for failure to provide security for costs – Application to dismiss appeal.
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| APPEARANCES: | Counsel | Solicitors |
| Ms Farnell appeared in person | ||
| For the Respondent | Ms K McMillan SC | T J Mulvany & Co |
MANDIE JA:
By summons dated 5 July 2010, the respondent to this appeal seeks an order that the appeal be dismissed, in effect, for want of prosecution. The application arises out of the following circumstances.
The appellant brought an application for a declaration of paternity under s 10(1) of the Status of Children Act 1974 (Vic) in respect of her daughter, Cindie Sassons. The appellant alleged that the late Malcolm Hilary Chipperton (of whose estate the respondent is the executor) was the father of Ms Sassons.
The application was heard by a judge in the Trial Division and was dismissed.[1] The trial took place on two days in January, one day in February, one day in July and two days in September in 2007. The trial concluded on 19 September 2007. Judgment was handed down on 24 June 2008.
[1]Farnell v Penhalluriack (No 2) [2008] VSC 214.
In her said application, the appellant had alleged that, while she was married to the late Raymond James Farnell, she had had a sexual relationship with Mr Chipperton during which time Ms Sassons had been conceived and that for many years she had had no sexual relationship with her husband or any other person. Mr Farnell was registered as Ms Sassons’ father and the judge had to consider whether there was evidence to the contrary, upon which he could be satisfied on the balance of probabilities, namely, that Mr Chipperton was Ms Sassons’ biological father. The judge was satisfied on the lay evidence that Mr Chipperton could have been the father of Ms Sassons.
However expert scientific evidence was adduced at trial of three separate DNA tests. The first one, which involved the examination of blood supplied by Mr Chipperton, the appellant and Ms Sassons, was conducted by Simons GeneType Diagnostics Pty Ltd in or about July 1998 and a report was provided by Dr Malcolm Simons. This first test had been conducted pursuant to an order of the Family Court. The second test was carried out under the auspices of the Australian Red Cross Blood Unit in or about January 1999 and a report of parentage testing was provided by Dr Albert Haddad, the senior scientist. This second test had been conducted pursuant to a court order that was made by consent in the course of a child maintenance application against Mr Chipperton. The result of both of these tests was that Mr Chipperton was excluded from identification as the father of Ms Sassons. The third test was carried out by the Victoria Police Forensic Service Centre in mid-1999. Again Mr Chipperton was excluded from identification as the father of Ms Sassons. At trial, Dr Henry Roberts, who managed the DNA science branch of the Centre at the time the test was carried out, gave evidence and was extensively cross-examined. That third test was conducted on the basis of a mouth swab taken from the appellant and Ms Sassons and tissue samples obtained from two of Mr Chipperton’s socks. One John Scheffer, an assistant director at the Centre, also gave evidence at trial about this test.
There was also evidence at trial that the appellant had obtained another DNA test from a laboratory called DNA Solutions, operated by Mr Vernon Muir. The judge said that the appellant had provided no adequate explanation as to why Mr Muir was not called to give evidence on her behalf and his Honour inferred that his evidence would not have assisted her case.
The judge concluded:
In summary, three reliable DNA tests have excluded Mr Chipperton from identification as Ms Sassons’ father. There is no evidence of a DNA test identifying him as her father. Ms Farnell did not present evidence of a fourth DNA test that she obtained, which I infer would not have assisted her case.
On the basis of the DNA evidence presented in this case, which has been properly examined and tested in the proceeding, I conclude it has not been proved to my satisfaction that the relationship of biological father and daughter exists between Mr Chipperton and Ms Sassons. I therefore reject Ms Farnell’s application for a declaration that the late Mr Chipperton is Ms Sassons’ father.
There is no basis for disturbing the presumption specified in s 5 of the Status of Children Act that the late Mr Farnell is Ms Sassons’ father. Nor is there any basis for departing from the prima facie evidence specified in s 8(1) of that Act that Mr Farnell is Ms Sassons’ father.
The appellant appealed against that decision essentially on evidentiary grounds contending that the judge should have accepted her evidence and other lay evidence and contending for the insufficiency of the DNA evidence.
The respondent then made an application for security for costs of the appeal. That application was heard on 3 October and 28 November 2008 and judgment was given by this Court on 5 December 2008.[2] In reasons for judgment, their Honours said:
In the present case, an order for security would not work oppressively. The respondent’s prospects of success are poor and her substantive claim has been ventilated both in the proceeding below and in proceedings in the Family Court, which ordered two of the DNA tests and, in August 1999, restrained the respondent and Ms Sassons from issuing further paternity or maintenance claims against Mr Chipperton.
The financial status of the estate, the nature of the claims against it and the status of the settlement thereof are also powerful circumstances favouring a grant of security for the costs of the appeal.
In all the circumstances, the application for security for the costs of the appeal should be granted.
[2]Farnell v Penhalluriack [2008] VSCA 250 (Kellam and Dodds-Streeton JJA).
The reference to a ‘settlement’ relates to certain proceedings against the estate that I will mention further below.
As a result, the Court of Appeal ordered on 5 December 2008 that ‘the appellant should, on or before 31 January 2009, give security in the sum of $16,000 for the costs that may be awarded against her on appeal, in a form acceptable to the Prothonotary failing which the appeal shall be stayed’. The High Court refused the appellant special leave to appeal from that order on 27 May 2009. Heydon and Bell JJ said, inter alia, that:
The papers filed in support of the applicant’s application for special leave to appeal to this Court are not sharply focussed. They press two groups of complaints. One group relates to various forms of alleged procedural unfairness or alleged procedural deficiency. The other attacks Bell J’s factual findings. There is no reason to suppose that if special leave were granted, an appeal pressing either group of complaints would have any prospect of success.
The appellant did not pay the security or any part of it by 31 January 2009 and has not done so since that date. Indeed, in a document handed to the Court on the hearing of this application and headed ‘Legal Argument’, she wrote that she had ‘no prospect of paying such costs before the proceeding’ (ie the hearing of the appeal).
There are three other proceedings against the estate. One proceeding is brought by three daughters of the deceased (Deborah, Meredith and Karen Chipperton) pursuant to Part IV of the Administration and Probate Act 1958. The other proceedings are by a third party (‘Gurappaji’) and involve, inter alia, an application for a declaration that certain property registered in the name of Meredith Chipperton was held by her on trust for the estate. These proceedings have all been settled but the implementation of the settlement depends upon the ‘finalisation of the Farnell proceeding’ (ie the present appeal) which is defined by clause 2 of the terms of settlement, as occurring ‘on the expiration of 14 days after … judgment … save in the case of an appeal, where finalisation will occur when the Court of Appeal delivers its judgment’.
The executor has sought to enforce the terms of settlement against Gurappaji but was met with the contention that the meaning and intent of the definition of ‘finalisation’ was such that it was necessary for this appeal to be finally disposed of by order of the Court of Appeal whereas the current order merely stayed the appeal. That contention was upheld by Associate Justice Evans on 27 November 2009 and, on appeal, by Justice Osborne on 14 December 2009. With respect, I think that the contention was rightly so upheld.
Based on the continuing failure by the appellant to provide the security for costs as ordered and the need for finality in this proceeding as a result of the terms of settlement of the other proceedings, the respondent contends that this appeal should be dismissed.
An affidavit of the appellant sworn 18 August 2010 sought to attack the order for security for costs contending that it raised ‘serious human rights issues as regards procedural fairness and equality before the law’. The affidavit also made a number of points in seeking to attack the judgment under appeal. A written submission of the appellant contended that dismissal of the appeal would prevent issues from being retried which have serious implications for the public and the justice process. The appellant went on to question the validity of DNA evidence in general and in the context of this proceeding. The appellant said that the application for dismissal should be refused and the order for security set aside.
The Court of Appeal had express power to order that the appellant give security for the costs of the appeal pursuant to O 64.24(2) but it is clear that the Court of Appeal would have had power to make such an order, even in the absence of that rule, pursuant to the Court’s inherent power to regulate its own procedure.[3] There is however no express power in the Rules to dismiss an appeal for failure to provide security for costs under an order to do so. This may be contrasted with the Court’s express power under O 62.04 to dismiss a plaintiff’s claim for failure to provide security for costs as required by an order. But again, in the absence of such a rule, the Court would have had power to dismiss a plaintiff’s claim for want of prosecution, in those circumstances, pursuant to the inherent power to regulate its own procedure.[4]
[3]See Lines v Tana Pty Ltd [1987] VR 641, 642.
[4]See La Grange v McAndrew (1879) 4 QBD 210.
Likewise there can be no doubt that the Court of Appeal has power, on an application under O 65, and pursuant to its inherent power to regulate its own procedure, to dismiss an appeal for want of prosecution or to dismiss an appeal for failure to provide security for costs as ordered. Failure to provide security for costs may be regarded as a species of ‘want of prosecution’ or equally as an independent ground for dismissal of an appeal. Either way, the Court’s discretion must be exercised guardedly, having regard to the interests of justice generally, although it may be appropriate to have regard to particular criteria, as appears from recent decisions in the Supreme Court of New South Wales.
In Porter v Gordian Runoff Ltd (No 3),[5] an order for security for costs of an appeal had been made and the appeal had been stayed until such security was provided. The security was not provided and eventually the respondents made applications for the appeal to be dismissed for failure to comply with the order to provide security, alternatively for want of prosecution. The applications for dismissal were made pursuant to express provisions contained in the applicable Rules operative in New South Wales. The New South Wales Court of Appeal referred with approval to what had been said in Idoport Pty Ltd v National Australia Bank Ltd both by Einstein J at first instance[6] and the Court of Appeal[7] as relevant factors to be taken into account on such an application, namely:
(a) the period that has elapsed since security was ordered;
(b)the fact that the [appellant] has been on notice of the application for dismissal;
(c)the seeming inability of the [appellant] to further fund the [appeal];
(d)the prejudice to the [respondent];
(e)the position of the Court.
[5][2005] NSWCA 377.
[6][2002] NSWSC 18, [24].
[7][2002] NSWCA 271.
The New South Wales Court of Appeal in Porter also adopted what had been said about the above list of matters by Einstein J in Idoport, namely, that the list was by no means exhaustive and that all the relevant circumstances were required to be taken into account including the Court’s straining wherever practicable consistently with the interests of justice to avoid taking the radical step of denying a party its day in court – all relevant matters had to be weighed in balance, the ultimate decision reflecting the interests of justice.
In the present matter, a substantial period has now elapsed since the order for security for costs was made. The order for security for costs was made on 5 December 2008 and had to be complied with by 31 January 2009. The hearing of this application for dismissal of the appeal took place on 12 November 2010 nearly two years since the making of the original order for security. In the meantime, the appellant had the indulgence of two adjournments of the respondent’s summons dated 5 July 2010 which was originally returnable on 10 September 2010, was adjourned to 8 October 2010 and then further adjourned to 12 November 2010. No security has been provided, and it is clear that the appellant has neither the intention nor the ability to provide the security for costs that was ordered; rather, she sought at the hearing of this application to contend that the order should never have been made. Given that nothing has relevantly changed since the order was made and the High Court refused special leave to appeal from it, it is not open to the appellant to seek, as she does, to re-agitate the merits of the order for security for costs.
Further, the appellant has had notice of this application for dismissal now for many months and her daughter, Ms Sassons, has also been notified of it.
Additionally, there is prejudice to the respondent not only of a general nature, constituted by the appeal being unresolved, but of a specific and particularly detrimental nature having regard to the impediment presented by this appeal to the implementation of the settlement of a number of other proceedings.[8]
[8]See paragraphs [13]-[14] above.
In a document headed ‘Report’ provided to the Court, the appellant sought to canvass in detail the merits of her appeal by putting forward a number of propositions in relation to the transcript of the trial before Bell J. The appellant’s ‘Report’ contains a mixture of assertions, opinions on scientific matters from her as a lay person and numerous irrelevancies. It is inappropriate and not even possible to canvass, even on a preliminary basis, the merits of the appeal on the basis of that document, although the appellant’s prospects of success in the appeal have been previously recognised both in this Court and in the High Court as poor.[9]
[9]See paragraphs [9] and [11] above.
In my view, and particularly in the light of the foregoing circumstances, the appellant's submission that questions of human rights, procedural fairness and equality before the law and other matters of public importance are raised by this appeal and by this application have not been substantiated.
The reality of the present situation is that, if the respondent’s application is not acceded to, the appeal will continue to remain in limbo, stayed by reason of the appellant’s failure to provide security for costs. This would be substantially prejudicial to the respondent.
Taking into account all the foregoing considerations, in my opinion the Court should order that the appeal be dismissed. In some circumstances, it would be appropriate to make a self-executing order along the lines that the appeal be dismissed unless the security for costs were provided within a further short period but it is clear that the appellant is both unwilling and unable to derive any benefit from such a further opportunity.
Accordingly, in my opinion, and in all the circumstances, the interests of justice dictate that this appeal should be forthwith dismissed.
HARPER JA:
I agree.
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