Fauna Holding Pty Ltd & Ors & Mitchell
[2000] FamCA 548
•26 May 2000
[2000] FamCA 548
FAMILY LAW ACT 1975
IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA Appeal Nos WA9, 10, 11 of 1999
AT PERTH Appeal No WA27 of 1998
File No PT 2040 of 1995
BETWEEN:
FAUNA HOLDINGS PTY LTD
BRIAN JOHN McGILLIVRAY
JAN LORENE McGILLIVRAY
KRISTEN JAMES McGILLIVRAY
Applicants
- and -
PAMELA KAY MITCHELL
Respondent
REASONS FOR JUDGMENT OF THE FULL COURT
APPLICATION FOR STAY
CORAM: NICHOLSON CJ, KAY & WARNICK JJ
DATE OF HEARING: 28 April 2000
DATE OF ORDER: 28 April 2000
DATE OF PUBLICATION
OF REASONS FOR JUDGMENT: 26 May 2000
APPEARANCES: Dr Dickey QC, instructed by Marks Healy Sands, Barristers & Solicitors, Level 26, 2 The Esplanade, Perth, WA 6000, appeared on behalf of the firstnamed Applicant.
Mr Errington of Counsel, instructed by Holden Barlow, Barristers & Solicitors, Level 9, 16 St George's Terrace, Perth, WA 6000, appeared on behalf of the second, third and fourthnamed Applicants.
Mr Walters QC, instructed by Anderson Josland, Barristers & Solicitors, Level 9, 26 St George's Terrace, Perth, WA 6000, appeared on behalf of the Respondent.
Name of Appeal Fauna Holdings Pty Ltd and Ors and Mitchell
Appeal Number WA 27 of 1998; WA 9, 10, 11 of 1999
Date of Appeal 28 April 2000
Date of Order 28 April 2000
Date of Publication
Of Reasons for Judgment 26 May 2000
Appeal Coram Nicholson CJ, Kay and Warnick JJ
Catchwords: Family Law - Appeals - Practice and Procedure - Orders - Application for Stay - Jurisdiction of Full Court - Principles governing discretion - Application dismissed.
On 11 April 2000, the Full Court dismissed appeals by Fauna Holding Pty Ltd and three associated individuals against orders made by Martin J. Pursuant to those orders Fauna was ordered to pay a fine of $20,000.00, Brian McGillivray was sentenced to four months imprisonment and Jan and Kristen McGillivray each to three months imprisonment. Pursuant to s112AB, the applicants were found to have contravened orders restraining Fauna from expending funds, dealing with property, borrowing monies or conducting business without giving the respondent wife's solicitors 21 days notice
On 20 April 2000 the applicants filed applications for a stay of Martin J's orders pending an application by them for special leave to the High Court of Australia. When the matter came on for hearing, the respondent wife filed a response objecting to jurisdiction. After hearing argument on the issues of jurisdiction and the substantive application, the Court determined that it had jurisdiction to hear and determine the application but that the application should be dismissed. Orders were made accordingly with reasons to be published subsequently.
HELD: per curiam, dismissing the application with costs.
The Full Court was not functus officio. Its jurisdiction is not confined to the hearing of appeals. The power to grant a stay is within the inherent jurisdiction of the Full Court and it has a duty to consider an application for a stay when such an application is made: Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd[No 1] (1986) 161 CLR 681 per Brennan J and De Lewinski v Department of Community Services (1996) FLC 92-678 per Gummow J applied; Order 32 Rule 4 Family Law Rules referred to.
The question of the grant of a stay is discretionary but there are clear guidelines as to its exercise as set out by Brennan J in Jennings’ case. It is also clear from the authorities cited that the power to grant a stay of the execution of an order constituting a sentence of imprisonment or bail pending an application for special leave is exercised sparingly and only in exceptional circumstances: Hamersley Iron Pty Ltd v Lovell [No 2] (1998) 20 WAR 79; Chamberlain v The Queen[No. 1] (1983) 153 CLR 514 per Brennan J at 517; Robinson v The Queen (1991) 65 ALJR 519; Hayes v The Queen (1974) 48 ALJR 455 per Mason J; Pelechowski v Registrar Court of Appeal (1998) 72 ALJR 711 and Strachan v Graves (1998) 72 ALJR 1327 referred to.
Approaching the matter upon the basis that a stay would be required to preserve the subject matter of the litigation (the sentences of imprisonment) and that the applicants had taken steps to seek a stay from this Court, it remained for the Court to consider whether there was a substantial prospect that special leave to appeal will be granted, whether the grant of the stay will cause loss to the respondent wife and where the balance of convenience lies. As to these matters, the Full Court considered that:
the suggested grounds advanced by the applicants were not likely to obtain them a grant of special leave;
the delay involved in pursuing an appeal to the decision to the High Court will cause the wife loss;
in the circumstances, the balance of convenience clearly lay with the wife.
REPORTABLE
INTRODUCTION
This is an application by Fauna Holdings Propriety Limited (hereafter referred to as "Fauna", Brian John McGillivray, Jan Lorene McGillivray and Kristen James McGillivray for a stay of orders made by Martin J in the Family Court of Western Australia on 16 June 1999.
Pursuant to those orders Fauna was ordered to pay a fine of $20,000.00, Brian McGillivray was sentenced to four months imprisonment and Jan and Kristen McGillivray each to three months imprisonment.
The orders were originally stayed pending appeals to the Full Court of the Family Court of Australia. The appeal was heard on 31 January and 1 February 2000. Judgment dismissing the appeal was given on 11 April 2000.
The matters were mentioned before Martin J on 17 April 2000 and adjourned for further mention on 28 April 2000.
On 20 April 2000 the applicants filed the present applications for a stay of the orders pending an application by them for special leave to the High Court of Australia.
The matter came on for hearing before us by a telephone link-up on 28 April 2000. On that day, the respondent wife filed a response objecting to jurisdiction. After hearing argument on the issues of jurisdiction and the substantive application, we determined that the Court had jurisdiction to hear and determine the application but that it should be dismissed. We indicated that we would deliver reasons subsequently and we now do so.
JURISDICTION
The substance of the argument advanced by Mr Walters QC for the respondent wife as to jurisdiction was that following the delivery of its decision on the appeals, the Full Court was functus officio and that in any event, its jurisdiction was confined to the hearing of appeals and that these proceedings were not an appeal within the meaning of Order 32 Rule 4 of the Family Law Rules.
The applicants on the other hand argued that the power to grant a stay was within the inherent jurisdiction of the Full Court. In this regard, Dr Dickey QC for Fauna, supported by Mr Errington of counsel for the individual applicants relied upon the decision of Brennan J (as he then was) in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd[No 1] (1986) 161 CLR 681 and the decision of Gummow J in De Lewinski v Department of Community Services (1996) FLC 92-678.
We think that this submission was clearly correct. In Jennings’ case, Brennan J cited a passage from the judgment of Mason J (as he then was) in Re Marks and Federated Ironworkers' Association (1981) 34 ALR 208 at 211 as follows:
“It has been accepted that the court has inherent jurisdiction to grant a stay of proceedings to preserve the subject matter of litigation, though it is a jurisdiction which is seldom invoked and rarely exercised (Tait v R (1962) 108 CLR 620 at 623-4). There is no reason for thinking that in an appropriate case the Court cannot exercise the jurisdiction so as to preserve the subject matter of the litigation when the litigation is an application for a writ of prohibition.”
10. Brennan J continued at 684:
“When an application for special leave to appeal is made to this Court, a jurisdiction to stay may be exercised by the Court below and it is to that Court – the Court in which the matter is pending and which is familiar with the matter - that an application to stay should first be made. In this case the Court of Appeal, not wishing to pre-empt the view that may be expressed in this Court, tailored its order accordingly. In future, there should be no inhibition on the Court in which the matter is pending framing a stay order, if a stay be appropriate, to avoid the necessity for application to this Court.”
11. The above passage from the judgment of Brennan J was cited by Gummow J in De Lewinski’s case in relation to an application for a stay from a decision of this Court pending an application for special leave to appeal to the High Court of Australia. In that case, Gummow J said at 83,049:
“In dealing with a stay application, the Full Court carried significant responsibilities, in accordance with a number of decisions of this Court. The stay application was properly made to the Full Court as the Court familiar with the matter. It then became important for the administration of justice that the application be dealt with, and be seen to have been dealt with, in a principled fashion.”
12. These remarks make it clear that is not only within the jurisdiction of this Court to consider an application for a stay but that it has a duty to do so when such an application is made.
13. We now turn to the substance of the application.
THE APPLICATION
14. We should mention that we were informed during argument that an application for special leave had in fact been filed in the High Court of Australia. In their affidavit sworn on 20 April 2000, Jan Lorene McGillivray and Kristen James McGillivray indicated that they had been advised that there was a strong case for the obtaining of special leave on the following grounds:
The extent to which Section 112 AB of the Family Law Act should not be interpreted according to its literal meaning, but instead should be read down or varied by a reference to the Australian Law Reform Commission report No. 35 and the second reading speech of the Attorney-General Mr Lionel Bowen of 21 December 1989.
Whether in light of the plain meaning of Section 112 AB, the conditions of ss 15 AA and 15AB of the Acts Interpretation Act 1901 (Cth) justified the Full Court of the Family Court having regard to the Australian Law Reform Commission Report No. 35 and the second reading of the speech by the Attorney-General Mr Lionel Bowen, of 21 December 1989, in any event.
Whether it was proper for the Full Court of the Family Court to consider the Australian Law Reform Commission Report No. 35 and the second reading speech of the Attorney-General, Mr Lionel Bowen, of 21 December 1989, neither of which were referred to in argument either by counsel or members of the Full Court, without presenting counsel with an opportunity to present submissions on the relevance of this material.
Whether or not there is a distinction between comments made in interlocutory proceedings and in a final hearing.
15. The last-mentioned ground is somewhat cryptic but we take it to be a reference to an argument advanced at the appeal that the trial Judge should have disqualified herself for bias having regard to comments that she had made during the course of interlocutory hearings.
16. Their affidavit also indicated that it was unlikely that an application for special leave could be heard by the High Court before October 2000 by which time the appellants would have served their sentences if no stay was granted.
17. Mr Walters for the wife strongly opposed the application for stay. He submitted that the principles in relation to the grant of the stay were as set out by Brennan J in Jennings’ case and cited in De Lewinski’s case (at 83,050). Brennan J had said:
“In each case when the Court is satisfied a stay is required to preserve the subject matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal would be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the Court in which the matter is pending; thirdly, whether the grant of the stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.”
18. Mr Walters also argued that in cases where a sentence of imprisonment has been imposed and there has been an unsuccessful appeal to the intermediate appellate court, a stay or bail pending appeal is only granted in exceptional cases.
19. He referred to a series of decisions including Hamersley Iron Pty Ltd v Lovell [No 2] (1998) 20 WAR 79; Chamberlain v The Queen[No. 1] (1983) 153 CLR 514 per Brennan J at 517; Robinson v The Queen (1991) 65 ALJR 519; Hayes v The Queen (1974) 48 ALJR 455 per Mason J; Pelechowski v Registrar Court of Appeal (1998) 72 ALJR 711 and Strachan v Graves (1998) 72 ALJR 1327.
20. He also pointed to the fact that as a result of a decision of the High Court in Witham v Holloway (1995) 183 CLR 525, all proceedings for contempt whether for civil or criminal contempt, must realistically be seen as criminal in nature - see also the remarks of Hayne J in Pelechowski’s case citing Witham v Holloway at para 4 on page 712.
21. So far as the present case is concerned, Mr Walters he pointed to the fact that the wife alleged that in breach of injunctions, the applicants had deliberately engaged in the transfer of very large sums of money offshore in 1996 in order to defeat the wife’s claim for a settlement of property and the fact that they had never been prepared to go on oath to explain what had happened to the money. He said that the longer the proceedings were protracted, the less likely it would be that any of the missing money would be recoverable.
22. He submitted that the fact that a substantial part of the sentence of imprisonment would be served before a special leave application was heard was not a decisive factor and in this regard, he referred to Strachan v Graves where that was the situation. He distinguished Pelechowski where bail was granted on the basis that, unlike the present case, the appellant had no opportunity of appellate review other than by way of an application for special leave to the High Court. He disputed the assertion that no application for special leave to the High Court could be made until October 2000 indicating that it might well be possible to do so by a video link on 16 June 2000. Finally he said the applicants had very little chance of success in the special leave application and that no substantive point of law was invoked.
23. In reply, Dr Dickey submitted that there was a significant special leave point involved in the issue as to whether s112 AB (1)(a)(i) required proof of deliberate intention to disobey an order as a prerequisite of a finding of contempt. He submitted that this question involved a point of public importance because the issue affected both contraventions of the Act and proceedings for contempt.
24. Mr Errington adopted that submission and further contended that the issue as to whether the comments of the trial judge in interlocutory proceedings could amount to bias also raised an issue of public importance.
CONCLUSIONS
25. The question of the grant of a stay in circumstances such as this is discretionary but there are clear guidelines as to its exercise as set out by Brennan J in Jennings’ case. It is also clear from the authorities cited that the power to grant a stay of the execution of an order constituting a sentence of imprisonment or bail pending an application for special leave is exercised sparingly and only in exceptional circumstances.
26. Although it was not clear to us as to when an application for special leave could be made, it does appear that even if one accepts the date suggested by Mr Walters, namely 16 June 2000, the individual applicants would by then have served a substantial portion of their sentences assuming that they were to commence on or about 1 May 2000. In those circumstances, the subject matter of the litigation, namely the sentences of imprisonment, would have become substantially irrelevant. We therefore think it appropriate to approach the matter upon the basis that a stay would be required to preserve the subject matter of the litigation.
27. We now turn to consider whether the other conditions referred to by Brennan J have been satisfied. Clearly enough, the applicants have taken steps to seek a stay from this Court so that the remaining issues are whether there is a substantial prospect that special leave to appeal will be granted, whether the grant of the stay will cause loss to the respondent wife, and where the balance of convenience lies.
28. While it is difficult for an intermediate appellate court that has already dismissed an appeal to make an objective assessment of an unsuccessful appellant’s chances on a special leave application, we do not think that the suggested grounds advanced by the applicants are likely to obtain them a grant of special leave. The conclusion that we reached as to the meaning s112 AB is not one about which we feel a great deal of doubt or difficulty and in this regard, we refer to our reasons for decision in dismissing the appeal.
29. We consider the further three grounds suggested on behalf of the applicants as having even less chance of success than the first one.
30. As to the issue of loss to the respondent wife, we think that the delay involved in pursuing an appeal to the decision to the High Court will cause her loss, not only in the expenditure of further legal costs in these proceedings, but in further delaying the trial on the matter of the merits, since until these matters are disposed of, she is effectively precluded from making full investigation and inquiry as to the disposition of the monies removed overseas and their recoverability.
31. Turning to the question of the balance of convenience, in this case it appears clear that the individual applicants either themselves or through corporate bodies controlled by them, have conducted what we think amounts to a war of attrition since they failed to comply with the injunctions directed at them. This has involved three appeals to the Full Court of this Court, only the first of which was successful on technical grounds, as well as the present application. They have yet to give their version of the facts. Very large sums have been spent on costs by the wife and she is still far from obtaining a trial of her claim on the merits. In the circumstances, we think that the balance of convenience clearly lies with the wife.
32. For those reasons, we determined to refuse the application as it concerns the individuals Brian John McGillivray, Jan Lorene McGillivray and Kristen James McGillivray. The position of the corporate applicant, Fauna, was even weaker than that of the individual applicants and we had no doubt that its application should also be refused.
I certify that the previous 32 numbered paragraphs are a true copy of
the reasons for judgment published by this Honourable Full Court.
Danny Sandor
Senior Legal Associate to the Chief Justice
26 May 2000
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