Fennessy & Gregorian (Security for Costs)

Case [2008] FamCAFC 89

FAMILY COURT OF AUSTRALIA

FENNESSY & GREGORIAN (SECURITY FOR COSTS) [2008] FamCAFC 89

FAMILY LAW - APPLICATION – SECURITY FOR COSTS IN RELATION TO APPEAL – Where three parties sought security for costs from husband in differing amounts – Discussion of Luadaka & Luadaka (1998) FLC 92-830 and Part 19.2 of the Family Law Rules 1994 – Where husband failed to provide accurate financial information – Where husband asserted that he had sufficient unspecified funds to conduct his appeal, but asserted he could not pay security – Whether husband’s appeal is bona fide – Whether grounds of appeal have merit – Where costs of appeal will be substantial – Where recovery of costs likely to be difficult – Security for costs ordered in the sum of $50,000 question of apportionment of quantum for some or all of the parties’ costs to be determined by the Full Court at the hearing of the appeal if appeal unsuccessful.

Family Law Act 1975 (Cth) - s 117(2), s 117(2A) – (5), 121,

Family Law Rules 2004 (Cth) – r 19.05(2), Pt 19.2

Jones & Jones (2001) FLC 93-080
Luadaka & Luadaka (1998) FLC 92‑830
APPELLANT: Mr Fennessy
RESPONDENT: Ms Gregorian
INDEPENDENT CHILDREN’S LAWYER: Mr Williams
INTERVENOR: Department of Child Safety
FILE NUMBER: BRF 5353 of 2003
APPEAL NUMBER: NA 6 of 2008
DATE DELIVERED: 2 July 2008
PLACE DELIVERED: Sydney
PLACE HEARD: Brisbane
JUDGMENT OF: Coleman, Boland & Thackray JJ
HEARING DATE: 15 May 2008
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 19 December 2007
LOWER COURT MNC: [2007] FamCAFC 1574

REPRESENTATION

ADVOCATE FOR THE APPELLANT: Mr Fennessy
COUNSEL FOR THE RESPONDENT: Ms Brasch
SOLICITOR FOR THE RESPONDENT: Andersons Solicitors

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

 Mr Linklater-Steele

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Williams

Williams Lawyers

SOLICITOR FOR THE DEPARTMENT

OF CHILD SAFETY:

 Mr Parrott, Crown Law

Orders

  1. That the husband’s Application in a Case filed 14 January 2008 is dismissed.

  2. That by consent of all parties, the hearing of the husband’s appeal proceed in reliance upon an electronic copy of the transcript of the evidence at trial.

  3. That, subject to Order 4 hereof, the hearing of the husband’s appeal be specially fixed for the week commencing 17 November 2008 in Brisbane.

  4. That on or before 4 August 2008 the husband lodge with the Appeals Registrar, Brisbane the sum of $50 000 by way of security for costs of the appeal, such sum to be invested by the Registrar in an interest-bearing account pending further order of the Full Court.

  5. That, not less than one month prior to the commencement of the hearing of the husband’s appeal, the husband file and serve any amended grounds of appeal upon which he wishes to rely together with an outline of all submissions which he intends to make on the hearing of his appeal together with references to the transcript of the trial upon which he relies.

  6. That the costs of this application be reserved.

IT IS NOTED that…

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Details
AGLC
Fennessy & Gregorian (Security for Costs) [2008] FamCAFC 89
Case
[2008] FamCAFC 89
Decision Date

CaseChat Overview and Summary

This case involved an application for security for costs in relation to an appeal in family law proceedings. The husband, who was the subject of the appeal, had been ordered to provide security for the costs of the appeal, with the wife, Independent Children’s Lawyer (ICL), and Department of Community Services (DoCS) each seeking different amounts. The court was tasked with determining whether the husband's appeal was bona fide, whether the grounds of appeal had merit, and whether the costs of the appeal were likely to be substantial and difficult to recover if the appeal was unsuccessful.

The court considered whether the husband's appeal was genuinely intended to address legal errors or if it was a vexatious attempt to undermine the original decision. The husband's failure to participate in the final days of the trial and his lack of engagement in the proceedings raised questions about the sincerity of his appeal. The court also examined the merits of the grounds of appeal, noting that many of the issues had already been decided in previous proceedings. The repeated nature of the arguments and the poor prospects of success suggested that the appeal might be an attempt to relitigate settled issues.

In light of the husband's lack of financial disclosure and the potential for significant costs, the court ordered him to provide security for costs in the sum of $50,000. This amount was to be invested in an interest-bearing account pending further orders of the court. The court also set conditions for the hearing of the appeal, including the filing of amended grounds of appeal and an outline of submissions. The costs of the application were reserved for a later determination.

The final orders of the court included dismissing the husband's application in a case, proceeding with the appeal based on an electronic copy of the trial transcript, and requiring the husband to lodge $50,000 by a specified date as security for the costs of the appeal. The court further mandated that the husband file amended grounds of appeal and an outline of his submissions at least one month before the hearing. The costs of the security for costs application were reserved for later determination.

Orders

Orders of the court

1.

That the husband’s Application in a Case filed 14 January 2008 is dismissed.

2.

That by consent of all parties, the hearing of the husband’s appeal proceed in reliance upon an electronic copy of the transcript of the evidence at trial.

3.

That, subject to Order 4 hereof, the hearing of the husband’s appeal be specially fixed for the week commencing 17 November 2008 in Brisbane.

4.

That on or before 4 August 2008 the husband lodge with the Appeals Registrar, Brisbane the sum of $50 000 by way of security for costs of the appeal, such sum to be invested by the Registrar in an interest-bearing account pending further order of the Full Court.

5.

That, not less than one month prior to the commencement of the hearing of the husband’s appeal, the husband file and serve any amended grounds of appeal upon which he wishes to rely together with an outline of all submissions which he intends to make on the hearing of his appeal together with references to the transcript of the trial upon which he relies.

6.

That the costs of this application be reserved.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Also going to the issue of the bona fides of the husband is that he chose not to participate in the final two days of the hearing of the trial. (Reasons for Judgment, Appeal Book Vol 1, page 17, par 1 and 7). On behalf of DoCS it was submitted that the husband “did not participate in the conclusion of the proceedings nor make submissions notwithstanding that he was given the opportunity to do so. Accordingly it is submitted that this appeal is not a genuine appeal, but rather an attempt to pass commentary on the decision.” (DoCS – Summary of Argument in Support of Application in a Case, Appeal Book Vol 3, page 479, par 21). Additionally, counsel for the wife submitted that the husband “now wishes to Appeal from a proceeding he started but declined to conclude” which “speaks little of the bona fides of the Appeal.” (Wife’s Submissions, page 6, par 17). Although we have some misgivings as to the genuineness of the husband in appealing against the trial Judge’s orders, and his motives for doing so, we are not persuaded that the husband is not bona fide in pursuing his appeal against the trial Judge’s orders. The material which the husband has to date produced in support of his appeal is influential in that respect. The actions of the husband relied upon by counsel for those resisting his appeal do however provide rather more support for the exercise of discretion to require the husband to provide security for costs than for refusing to do so. It was submitted by counsel for the wife, the ICL and DoCS that the grounds of appeal agitated by the husband are issues that have been raised and decided in earlier proceedings. On behalf of the wife, counsel submitted that “[t]he current Amended Grounds of Appeal evince little difference to that which the [husband] has already agitated and appealed” and that “[h]e made out not one of his Grounds”. Counsel proceeded to submit that “Thus, with the [husband] failing to participate after the 2007 Appeal was determined (ie, the Appeal raising almost identical grounds to the present) it would be hard to say that there is a high probability of success for him.” (Wife’s Submissions, page 5, par 13). Counsel for the ICL submitted that the husband “continues to press forward with arguments which have been demonstrated and found in the past to be irrelevant for the purposes of any appeal and the determination of the best interests of the child.” (Outline of Submissions – Security for Costs Application – ICL, pages 5 – 6, par 33). Similarly, the submissions of the Crown Solicitor on behalf of DoCS suggest that “the Grounds of Appeal are almost identical to those previously agitated. Accordingly it is submitted that the [husband’s] prospects of success are very poor at best.” (Summary of Argument in Support of Application in a Case, Appeal Book Vol 3, page 478, par 17). Giving reasons for so concluding, the Crown Solicitor further submitted that “the Appeal is vexatious.” (Summary of Argument in Response to Application in a Case, Appeal Book Vol 3, page 490, par 25).

Ratio Decidendi

Legal Principle Established

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