Finlayson and Finlayson and Gillam - [2001] FamCA 49

[2001] FamCA 49

FAMILY LAW ACT 1975

IN THE FULL COURT

OF THE FAMILY COURT OF AUSTRALIA
AT ADELAIDE

Appeal No. SA43L of 1998 and SA42 of 1998
File No. AD3311 of 1994

IN THE MATTER OF:

FINLAYSON
Appellant/Husband

and

FINLAYSON
Respondent/Wife

and

GILLAM
Other Parties

EDITED

REASONS FOR JUDGMENT

Coram:  Ellis, Lindenmayer and Guest JJ.
Date of Hearing:               25 September 2000
Date of Judgment:            9 March 2001

Appearances:The Appellant Husband appeared in person

Mr Mellows of counsel (instructed by Lesley Hastwell
  & Associates,      55 Gawler Place, Adelaide S.A. 5000)
  appeared on behalf of the Respondent Wife and on
  behalf of the Other Parties

JURISDICTION OF FAMILY COURT OF AUSTRALIA – Ultra vires - Whether a trial Judge has jurisdiction to make an order for security for costs in relation to an appeal – Whether a trial Judge has jurisdiction to order the stay of an appeal. Harrington v Lowe (1996) 190 CLR 311 discussed and adopted.

This was an appeal, filed by the husband, against orders made by Murray J on 25 May, 1998.

The wife, aged 34, and the husband aged 35, were married on 25 January, 1992 and separated 2 years later. There were no children of the marriage.

After property settlement negotiations fell through, on 12 November, 1997, Murray J made property orders and dismissed the husband’s application for spousal maintenance. These proceedings had been consolidated with proceedings between the “other parties” and the husband, which had been transferred to the Family Court by order of the Supreme Court of South Australia pursuant to the provisions of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (SA).

The “other parties” were the wife’s parents and in an attempt to assist the wife, they had sold a property, located at Dulwich, to her and the husband on very generous terms. The balance of the purchase moneys were never paid, thus making the other parties unpaid vendors of the land and, consequently, beneficially entitled to possession, use, rents and profits of the property.

In the property proceedings, Murray J made a declaration to the effect that neither the husband nor the wife had any proprietary interest, either legal or equitable, in the Dulwich property, however her Honour did conclude that the husband and the wife both had a chose in action to recover moneys paid by them towards the purchase of the property. This amount totalled $66 346, and her Honour ordered the other parties to pay the husband $8 508 and the wife $57 492.

These orders were not formally taken out until issues relating to costs were resolved in December, 1997.

The husband then filed Notices of Appeal in both the family law proceedings and the cross-vested proceedings. The wife and the other parties each then made an application for security for costs of the appeals. The husband asked the trial Judge to disqualify herself from hearing this application, however her Honour refused to do so.

The trial Judge ordered the husband to pay $5 000 by way of security for costs of the appeal in respect of the other parties and a further $5 000 as security for the costs of the appeal of the wife. Her Honour’s orders further provided that the hearing of the appeals was to be stayed until those sums for security had been paid.

The husband then instituted appeal proceedings against the trial Judge’s refusal to disqualify herself from hearing that application on the ground of perceived bias, in conjunction with an application for leave to appeal against the orders regarding security for costs and the associated order that stayed the appeals until that security had been paid.

In the application for leave to appeal the husband contended (inter alia) that order 32 rule 5 was invalid, as it was ultra vires s 28(3) of the Act and that both the order for security and the order staying the appeal were beyond the jurisdiction of a single judge. On 1 August, 2000 the Full Court granted leave to appeal, limited to those issues of jurisdiction.

On Appeal, the husband challenged the trial Judge’s refusal to disqualify herself on the ground of perceived bias, and further submitted that her Honour did not have jurisdiction to make either an order for security for costs, or an order staying the hearing of the two appeals. The wife and the other parties also filed a Form 42A application to have the appeals summarily dismissed, or alternatively struck out.

Held: in dismissing the wife’s and the other parties’ Form 42A application and allowing the appeal:

When considering an application to summarily dismiss an appeal, considerable caution must be exercised to ensure that an appellant is not deprived of an opportunity to prosecute an arguable appeal that has, on the face of it, merit and all for the sake of achieving finality. In exercising their discretion to dismiss the application, the Court took into account that it was not suggested by the wife and the other parties that the husband’s conduct was intentional or contumelious, or that it could in any way amount to an abuse of the process of the Court. Furthermore, the delay, such as it was, has not caused prejudice to the wife and the other parties. Lindon v Commonwealth (No. 2) (1996) 136 ALR 251, Bigg v Suzi (1998) FLC 92-799; General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 considered.
There was nothing in the trial Judge’s judgment that could directly, or by reasonable inference, demonstrate that her Honour brought a biased or prejudiced mind to the task before her that day. Her Honour’s reference to an outstanding order for costs made against the husband was to an uncontested fact and, significantly, the issue of credit, upon which her Honour had made previous findings adverse to the husband, bore no relevance to the matters to be determined by her Honour in the current proceedings.
Having regard to the definition of “… court” in s.4(1) of the Act, and to the fact that, by s.28(3), jurisdiction in appeals is vested in a Full Court, s.117(2) confers no jurisdiction on a single judge (as distinct from the Full Court) to make an order for security for the costs of an appeal to the Full Court from a decision of a judge exercising the original jurisdiction of the Court. No other section of the Act purports to vest that jurisdiction in a single judge of the Court, but Order 32, rule 5 purports to do so. Order 32 rule 5 of the Rules is one which varies or departs from and is inconsistent with the positive provisions of the Act (namely ss.28(3) and 117(2)), and/or goes “… beyond the field of operation marked out by the Act”. Further, the Rule “… goes beyond the provision of the means by which substantive rights are to be enforced or protected” and in fact purports “… impermissibly to alter substantive rights.” Accordingly, it is ultra vires the rule making power, and is invalid. Harrington v Lowe (1996) 190 CLR 311 discussed and adopted.
There being no provision in the Act similar or equivalent to s.56 of the Federal Court of Australia Act empowering a single judge to order security for costs of an appeal, and O.32, r.5 of the Rules being invalid, her Honour had no jurisdiction to make such an order, and any application for such an order, were it to be made, should have been made to the Full Court, which is the Court invested with jurisdiction in appeals. Accordingly, the trial Judge’s order that the hearing of the husband’s appeals be stayed, was beyond power.
Given the foregoing findings of the Court, the basis of the costs order made by her Honour against the husband had dissipated and, therefore, the order was set aside.
The circumstances of the case justified, firstly, the making of a costs order in favour of the husband in relation to the appeal and, secondly, the granting of a costs certificate pursuant to s6(3)(a) of the Federal Proceedings (Costs) Act 1981 in favour of the wife and the other parties.

REPORTABLE

INTRODUCTION

By an amended Notice of Appeal filed on 22 August 2000, [the husband] appealed from the following orders made by Murray J on 25 May 1998:
“1.That the husband do within two months pay FIVE THOUSAND DOLLARS [$5,000.00] by way of security for costs of the appeal in respect of the other party and FIVE THOUSAND DOLLARS [$5,000.00] towards the costs of the appeal in respect of the wife, and that FIVE THOUSAND DOLLARS [$5,000.00] be paid to a trust account in the joint names of the husband and Mr N.W. Winter and FIVE THOUSAND DOLLARS [$5,000.00] to a joint account in the name of the husband and Ms Lesley Hastwell both to abide the determination of the appeals by the Full Court, and that the hearing of the appeals be stayed until those sums for security be paid.
2.That the husband do pay costs of today’s hearing of the other parties to be fixed at FOUR HUNDRED DOLLARS [$400.00] and the wife at THREE HUNDRED AND FIFTY DOLLARS [$350.00].
3.…
4.…
5.…”
[The orders requiring the husband to pay $5000 by way of security for costs were in respect of appeals No. SA76(i) of 1997 and No. SA76(ii) of 1997.]
By a Form 42A Application filed on 20 September 2000, [the wife] and [the other parties], who are the wife’s parents, sought the following orders:
“1.That the within appeals be dismissed or alternatively struck out pursuant to Order 32 rule 18 of the Family Court Rules.
2.That the provisions of Order 32 rule 19 of the Family Court Rules be dispensed with.
3.That the appellant pay the respondent’s costs of and incidental to this application and the within appeal.
4.That in the alternative the hearing of the within appeals be adjourned upon such terms as to costs and security for costs as the Court deems just.
5.For such further or other directions as the Court deems appropriate.”
There were four issues argued for our determination and which involved (in summary):
3.1an allegation of bias on the part of her Honour,
3.2whether or not her Honour had jurisdiction to make an order for security for costs in relation to each of the two appeals or either of them,
3.3whether or not her Honour had jurisdiction to order a stay of each of the two appeals or either of them, and finally
3.4whether the appeals should otherwise be dismissed, struck out or adjourned upon certain conditions.
In addition, the husband submitted during the course of argument that her Honour had made an order staying the hearing of his appeals without first affording to him an opportunity to be heard on that issue. That order, on the face of it was one that affected the legal rights of the husband, who was a litigant in person and in respect of whom certain obligations are cast upon trial Judges. See Johnson (1997) FLC 92-764. The husband accordingly sought leave to expand his grounds of appeal during the course of argument to include a further ground that he was denied natural justice. This application was opposed by Mr Mellows, of counsel who appeared on behalf of the wife and the other parties. We propose to return to this issue later in the judgment.

BACKGROUND

The proceedings have a complex history of litigation spanning in excess of half a decade and which comprise multiple applications and various appeals. Regrettably, there appears to be no immediate end to the bitter and costly litigation embraced by the parties.
The formal particulars of the background may be stated in short compass. The wife was born on 2 August 1966, and the husband was born on 24 October 1964 making them aged 34 and 35 years respectively at the time of the hearing of the appeal. They were married on 25 January 1992 and separated precisely two years later on 25 January 1994. There were no children born of their union.
The wife instituted proceedings for settlement of property by an application filed on 8 June 1994 which involved (inter alia) the property situate at [the Dulwich property]. The husband filed an amended Answer and Cross Application in about March 1995 in which he too sought (inter alia) orders for a settlement of property together with spousal maintenance.
Those proceedings commenced before her Honour on 27 November 1995. On 29 November 1995 the parties advised that they had resolved all outstanding matters, whereupon her Honour adjourned the further hearing to enable consent orders to be drawn.
Unfortunately, the matters were not resolved and subsequently the other parties commenced proceedings against the husband in the Supreme Court of South Australia for certain relief in respect of the Dulwich property. Those proceedings were later transferred to the Family Court of Australia by order of the Supreme Court of South Australia pursuant to the provisions of the Jurisdiction of Courts (Cross-vesting) Act 1987 (SA). Pursuant to orders made by Gunn J on 13 May 1996, those proceedings were then consolidated with the property and maintenance applications of the husband and the wife to which we have referred.
At issue between all of the parties in those proceedings was the nature of the interests held by them in the Dulwich property which was registered in the name of the other parties, but which had been occupied by the husband and the wife as their matrimonial home.
The proceedings resumed before her Honour over a number of days in October, concluding on 8 November 1996 with judgment being handed down on 12 November 1997. In summary, her Honour made a declaration that the other parties were the legal and equitable owners of the Dulwich property and ordered the husband to withdraw a caveat which he had lodged over its title. In turn, the other parties were required to pay to the husband and the wife the sum of $66,000 which was then apportioned by her Honour pursuant to the provisions of s.79 of the Family Law Act 1975 (“the Act”) as to $8,508 in favour of the husband and $57,492 in favour of the wife. There were other orders made by her Honour the details of which are not pertinent to the proceedings before us. Appeals (No. SA76(i) of 1997 and No. SA76(ii) of 1997) were filed by the husband on 12 December 1997 against those orders.
On 22 December 1997 her Honour heard and determined (inter alia) an application for costs by the wife and the other parties in respect of the property proceedings. Her Honour ordered (inter alia) that the husband do pay the costs of each of the wife and the other parties, in default of agreement, such costs to be taxed.
On 10 March 1998 the other parties caused to be filed a Form 8 Application in which they sought the following orders:
“1.An order that the respondent provide security for costs pursuant to Order 32, rule 5 of the Family Court Rules.
2.Such other orders as the court thinks appropriate.”
On 21 May 1998 the husband caused to be filed a Form 8A Response to that application and in which he sought the following orders:
“1. That the application for security for costs be dismissed.
2.That the applicants do pay the costs of the respondent of this application to be agreed or taxed.
3.That the applicants do pay to the respondent within 14 days the sum of $15,000 by way of future or interim costs for the prosecution of appeals SA76(ii) of 1997 and SA7 of 1998, pursuant to s.117(2) of the Family Law Act.
4.That the orders for costs made by Murray J dated 22 December 1997 be stayed.
5.That Her Honour Justice Murray disqualify herself from hearing this application and response.
6.Such other orders as this Honourable Court shall deem fit.”
On 29 April 1998 the wife caused to be filed a Form 8 Application in which she sought the following orders:
“1.That the appellant provide security for the respondents costs of the appeal pursuant to Order 32 Rule 5 of the Family Court Rules.
2.That this application be heard contemporaneously with the application of [the other parties] in File No. SA76(ii) of 1997 which has been adjourned until May 25^th 1998 at 9.30 am.
3.Any further or other orders deemed fit by this honourable court.”
On 21 May 1998, the husband caused to be filed a Form 8A Response to that application in which he sought the following orders:
“1.That the wife’s application for security for costs be dismissed.
2.That the applicants do pay the costs of the respondent of this application to be agreed or taxed.
3.That the wife do pay to the husband within 14 days the sum of $15,000 by way of future or interim costs for the prosecution of appeals SA76(i) of 1997 and SA7 of 1998, pursuant to s.117(2) of the Family Law Act.
4.That the orders for costs made by Murray J dated 22 December be stayed.
5.That the wife do pay the husband by way of spousal maintenance such sum as the court deems fit.
6.Further and in the alternative vary the order of 12/11/97 in relation to maintenance and order the payment of such weekly sum as the Court deems fit.
7.Further and/or in the alternative vary the order of 13/8/96 and order the payment of such weekly sum as the court deems fit.
8.That Murray J disqualify herself from hearing this application and response.
9.Such other orders as the court deems fit.”
Those applications were heard by her Honour on 25 May 1998 who made the orders referred to by us in paragraph 1 hereof. Those orders became the subject of two further sets of proceedings, namely an application for leave to appeal the decision of her Honour requiring the husband to pay the security for costs and staying the appeals until security had been paid (No. SA43L of 1998) together with an appeal as of right against the refusal of her Honour to disqualify herself from hearing that application on the ground of perceived bias (No. SA42 of 1998).
On 27 September 1999 the Full Court (Ellis, Lindenmayer and O’Ryan JJ) directed that the husband file appeal books within two months of service of its order upon him (in appeal No. SA42 of 1998) and ordered that in default of him so doing, the appeal be dismissed. The Court further directed the husband to file written submissions in respect of appeal No. SA43L of 1998 within 21 days of service of the order made that day. An application filed by the husband on 7 March 2000 to set aside those orders was subsequently dismissed.
On 28 March 2000, the Full Court (Nicholson CJ, Kay and Waddy JJ) directed that, in the event the husband’s application for leave to appeal (No. SA43L of 1998) was successful, the appeal foreshadowed in that application be heard at the same time as appeal No. SA42 of 1998. The Court further directed that an appointment to settle the relevant appeal book index be made within 28 days of judgment being delivered in appeal No. SA43L of 1998. In the result, further orders were made by the Full Court (Kay, Coleman and Guest JJ) on 1 August 2000 granting leave to the husband to appeal against the orders of her Honour made on 25 May 2000 requiring the payment of security for costs of the appeal filed in appeals No. SA76(i) of 1997 and No. SA76(ii) of 1997 and further staying the hearing of such appeals until the security had been paid, such leave to be limited only to the issue of whether her Honour had jurisdiction to make such orders.
18. In granting leave, their Honours said:
“11.… if it can be demonstrated that Murray J acted in excess of jurisdiction in granting the orders for security for costs and/or the stay as part of those security for costs, then the denial to the husband of his right to appeal against the orders made at the trial could well amount to a substantial injustice being caused to him.
…
17.Given that the matter is not without doubt, and given that Mr Finlayson is entitled to proceed as of right in his appeal in SA42 against the failure of the trial Judge to disqualify herself from making the orders (s.94(1AA)), we think it is appropriate in the circumstances to grant leave limited only to the issue of jurisdiction.”
It is this Appeal that now falls to be determined by us in conjunction with the Appeal regarding her Honour’s refusal to disqualify herself.

On 18 August 2000, a Deputy Registrar directed the husband to file the relevant appeal books by 8 September 2000. On 4 September 2000, the husband sought to review that direction. On 5 September 2000, Kay J extended the time for the filing and serving of the appeal books to 12 September 2000 and further ordered (inter alia) that all submissions of the husband be filed and served by 15 September 2000. The husband was ordered to pay costs. In the result, the husband filed his Summary of Argument on 15 September 2000 and the appeal books on 19 September 2000. On 20 September 2000, the wife and the other parties filed their respective applications to which we referred in paragraph 2 hereof.

JUDGMENT OF THE TRIAL JUDGE

The extempore reasons for judgment delivered by her Honour are extremely short and comprised the following:
“These are short reasons in respect of two applications before me by the other parties and the wife for security for costs in relation to two appeals lodged by the husband against orders for property settlement and costs, made by me on 22 December last.
The husband also asks for security for his costs, although he is self-represented, but he maintains that he has already paid out $3,900 for transcript, $800 for solicitors fees and $200 for photocopying. I am informed by counsel from the bar table that the order for costs, for $2,500 made by the Full Court last year, have not been paid and Mr Finlayson tells me from the bar table that the wife owes him money which he has set those moneys off against moneys due to him.
I have no evidence of this before me, but I note what he says. The husband sets out evidence of his financial position and he owes well over $220,000. Nevertheless, despite that, he apparently has been able to find the money to pay nearly $5,000 in disbursements. This is a worrying matter. The husband has pursued – and I use the word pursued advisedly – pursued the other parties and the wife for some years now, and I heard evidence of other proceedings instituted by the husband in other jurisdictions, against the wife and the other parties.
It is his right, of course, as a citizen, to take what action he feels will bring him justice, in whatever jurisdiction he pleases, but there is also the need that the costs of the other parties and the wife, which are now very, very considerable, should be protected if the appeal should be unsuccessful.
If the appeals are successful, then the Full Court will deal with the matter as it sees fit. If the appeals are unsuccessful and costs are ordered against the husband – and once again, this is a matter for the Full Court – then on his present statement of affair (sic), it would appear that they would have no opportunity of recovering any money by way of costs against the husband.
The order is therefore, and I take into account the capacities of the parties to pay, although I have no up-to-date evidence before me of the other parties. (they are not required to file Form 17s under Supreme Court proceedings).
In the exercise of my discretion, I order:
(1)that the husband do, within two months, pay $5,000 by way of security for costs of the appeal against the other party and $5,000 towards the costs of the appeal in respect of the wife and that $5,000 be paid to a trust account in the joint names of the husband and Mr N.W. Winter and $5,000 to a joint account in the name of the husband and Ms Lesley Hastwell, both to abide the determination of the appeals by the Full Court, and I will remove from the pending list.
(2)The hearing of the appeals be stayed until those sums of security for security be paid.
[LATER]
(3)I am ordering that the husband pay the costs of today’s hearing, fixed in the sum as regards the other parties at $400 and the wife at $350.”
I refer the question of husband’s application for spousal maintenance to the Registrar’s List for hearing.
(4)Further consideration of husband’s application for interim costs of his appeals adjourned to a date to be fixed before Murray J.
…”
For the sake of completion, the issue of jurisdiction was raised by the husband during the course of the extensive argument before her Honour. Both counsel for the wife and the other parties relied upon Order 32 rule 5 of the Rules which was then in the following terms:
“RULE 5SECURITY FOR COSTS
5Where an appeal has been instituted:
(a)the Judge who made the decree appealed from; or
(b)if that Judge is not reasonably available – another Judge of the court in which the decree was made;
may make an order, upon such terms as the Judge thinks fit, for security for costs.”
[Order 32 rule 5 has been subsequently amended by SR2000 No. 172 Sch 1.]
The following extract of the transcript reveals the extent of the submissions before her Honour.
“MR FINLAYSON: Yes, your Honour. In my response I have sought an order that your Honour not deal with these applications and a couple of …
HER HONOUR: The trouble is I have to deal with them because it is an order for – an application for security. Let me just have a look at your response. That was filed?
MR FINLAYSON: It is certainly the case that under the rules they are to be referred to your Honour in the first instance.
HER HONOUR: Yes, they have to be. That is document 235. There really is nobody else because, you see, we have had a number of judges retire and new ones appointed. There’s really nobody else who can deal with the matter, Mr Finlayson. I’m just trying to find your – if you set out your grounds, please, you are asking for this.
MR FINLAYSON: The first one is that we are dealing with issues in relation to the appeal process and that the appeal process is there essentially as a matter of right under the Family Law Act.
HER HONOUR: Of course.
MR FINLAYSON: I should not be in a position where a judge at first instance can make an order which may have the effect of frustrating my ability to undertake that appeal.
HER HONOUR: They are the rules. It is the judge at first instance that makes the order for security of costs, if any. Yes, what is your next point?
In his response, counsel for the other parties put the following submission to her Honour:
“DR BAXTER:
The Judge may make an order on such terms –
etcetera. We say that that – that gives to your Honour – and, indeed, is – although not directive, indicates that it is your Honour who should make the order because it is …
HER HONOUR: Yes, quite clearly. I mean, I’ve explained to Mr Finlayson that there is nobody else, in any event, who could hear the matter except myself.
DR BAXTER: The Judge who made the decree appealed from or if that Judge is not reasonably available, another Judge.
HER HONOUR: Yes. There’s no discretion about that. Yes, and now the other points that Mr Finlayson makes; the evidence as to the other party’s financial circumstances.”
In fairness to her Honour, it can be readily seen that the submissions in relation to the security for costs issue were not presented in any helpful detail or manner at all. This was also the position in relation to the order to stay the hearing of the husband’s appeals pending payment of the security for costs order. On that issue, her Honour was not afforded any meaningful assistance by any of the parties, for the transcript of that day reveals the extent of the submissions as follows:
“*MR FINLAYSON: Your Honour, there is two very brief points. First, that having ordered security for costs I ask that the appeal be stayed until security.
HER HONOUR: Yes, of course.
*MR FINLAYSON: Until security is provided.
HER HONOUR: And that the hearing – and of course if Mr Finlayson wishes to go further, well then of course that is open to him.
*MR FINLAYSON: Yes.
HER HONOUR: And that the hearing of the appeals …
*MR FINLAYSON: Well, it is all steps, your Honour, because at the moment there is an application to review the settlement of the appeal book.
HER HONOUR: I see.
*MR FINLAYSON: With respect, that should be stayed pending the furnishing of a security.
HER HONOUR: The appearing of the …
MR FINLAYSON: Your Honour, I have not had a chance to argue that point.
HER HONOUR: No, you haven’t had the opportunity Mr Finlayson and I note that. That will have to wait for another day because it is 11 o’clock and I have got this enormous callover to do – and that the hearing of the appeals be stayed until that, until those …
MR FINLAYSON: Well, that is precisely the point. I haven’t had the opportunity to argue, your Honour.
HER HONOUR: That is normal. There is not anything unusual about that, Mr Finlayson, that is the normal rule.
MR FINLAYSON: Yes, I’m discovering there is nothing unusual about that, your Honour.
HIS (sic) HONOUR: Thank you. And those sums of security, until those sums for security be paid. But on the question of the staying of the review, that is a different matter. You are entitled to argue that. But that, I think, can – that will go before another Judge who is hearing – in the reviews, and you will have the opportunity of speaking to that.”
[The references to “Mr Finlayson” in the above extract of transcript and marked with an asterisk should read “Dr Baxter”.]

THE FORM 42A APPLICATION

The Form 42A application referred to in paragraph 2 was heard and determined by us on 25 September 2000 and in the result, was dismissed. We then indicated that our reasons for dismissing that application would be included in the substantive reasons for judgment in the appeal. Those reasons follow.
The application of the wife and the other parties was supported by an affidavit sworn by the solicitor who (inter alia) set out details of outstanding costs orders that had not been complied with by the husband. The solicitor complained that the husband had not complied with the order of Kay J of 5 September 2000 directing the husband to file and serve the Appeal Books by 12 September 2000. In the result, they were filed on 19 September 2000. She further complained that his Summary of Argument, which was to be filed and served by 15 September 2000 was not received until 18 September 2000. The solicitor otherwise pointed out what may compendiously be described as the husband’s tardiness in the prosecution of his appeal before the Court.
Mr Mellows submitted that the husband had not prosecuted his appeal with reasonable diligence as a consequence of which we should exercise our discretion pursuant to Order 32 rule 18 of the Rules to dismiss or strike out the appeal. The bases upon which such orders were sought were that:

§ The appeals were filed by the husband over two years ago;

§ Orders have already been made conditionally dismissing the appeals;

§ Those orders were recalled or modified upon the husband claiming he was unaware of the hearing of the proceedings;

§ The husband failed to comply with directions in a timely manner for the filing of the Appeal Book;

§ The husband failed to provide security; and

§ That substantial costs had been incurred by the wife and the other parties which remain unsatisfied.

He also submitted that the appeals should be dismissed for want of prosecution or alternatively on the merits, with costs.

In the alternative, Mr Mellows submitted that even if her Honour lacked the jurisdiction to make the orders sought, it was appropriate that security be given and the proceedings be stayed given:

§ The financial capacity of the husband to satisfy any orders for costs should the appeals be unsuccessful;

§ The substantial costs orders which remain unsatisfied;

§ The manner in which the husband had conducted the litigation including the appeal process; and

§ The amount of the security ordered was modest in the circumstances.

We have referred to the background leading up to the hearing of the appeals and it is significant, in our view, that it was not until 20 September 2000 that the wife and the other parties saw fit to file and serve their application. Prior to that date no like application had been made to the Court. It was not sought to argue that the appeals were without merit nor could it be so given the reasons of this Court on 1 August 2000 in granting leave to the husband against the orders made by her Honour on 25 September 1998. As the Court said, the answer to the question of jurisdiction raised by the husband was by no means clear and the matter not without doubt.
The discretion to summarily dismiss the appeal as sought is a serious matter indeed. Whilst there has been quite a delay in bringing the proceedings to court, both the wife and the other parties have been somewhat complacent themselves in relation to the issue about which they now complain. In applications such as this, considerable caution must be exercised to ensure that an appellant is not deprived of an opportunity to prosecute an arguable appeal that has, on the face of it, merit and all for the sake of achieving finality. It is a balancing exercise on our part and we are quite satisfied, in the exercise of our discretion, that the application should be dismissed. See generally Lindon v Commonwealth (No. 2) (1996) 136 ALR 251 esp at 255-256, applied by the Family Court of Australia in Bigg v Suzi (1998) FLC 92-799. See also General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125 esp at 128 per Barwick CJ. In coming to our determination we also take into account that it was not suggested by Mr Mellows that the husband’s conduct was intentional or contumelious, or that it could in any way amount to an abuse of the process of the Court. Furthermore, the delay, such as it was, has not caused prejudice to the wife and the other parties.
No cogent reasons were advanced to support the order sought that the hearing of the appeals be adjourned. Mr Mellows was in a position to argue the substantive grounds of appeal. In the circumstances, the application of the wife and the other parties was dismissed.

THE NATURAL JUSTICE ARGUMENT

We have earlier referred in paragraph 4 of this judgment to an argument developed by the husband in the course of submissions that her Honour failed to afford to him an opportunity to be heard on the application by the wife and the other parties to stay the hearing of his appeals until such time as the sums ordered for security were paid. The relevant parts of the transcript (set out in paragraph 23) make it clear that the husband was not given that opportunity and any protest by him was summarily dismissed by her Honour.
In the course of submissions before us on this issue, Mr Mellows pointed out, and correctly, that that about which the husband complained was not a matter in relation to which he had sought leave to appeal or suggested as a ground of appeal. He submitted that leave was granted to the husband limited to the two specific questions going to the jurisdiction of her Honour to make orders for security for costs and to order a stay of the appeal from her own decision. In those circumstances, he submitted it was wholly inappropriate to expand the terms of the order of the Full Court in granting leave to the husband on 1 August 2000.
In the result, the husband’s oral application for leave to amend his grounds of appeal was not pursued further. It is clear from a reading of the transcript of the proceedings before her Honour in any event, that she was subject to severe time constraints. Furthermore, the substance of the husband’s appeal is not affected by those events about which he now complains, for the jurisdictional issue is before us anyway for our determination.

GROUNDS OF APPEAL

The husband relied upon the grounds set out in his amended Notice of Appeal filed on 22 August 2000 and which are in the following terms:
“1.A reasonable bystander could reasonably form the view that the trial judge did not bring an unprejudiced mind to the question before them (sic).
2.The trial judge did not have jurisdiction to make an order for security for costs in relation to each or either of the two appeals.
3.The trial judge did not have jurisdiction to order a stay of the appeals.
Grounds 2 & 3 are brought by leave of the Full Court granted 1 August 2000 and consolidated with this appeal by virtue of orders of teh (sic) made March 2000.”

SUBMISSIONS AND CONCLUSIONS

GROUND 1. PERCEIVED BIAS

A.SUBMISSIONS

The husband submitted, in support of this ground, that the appropriate test was whether a reasonable observer might reasonably conclude that the Judge “… did not” bring an unprejudiced mind to the question before her, referring us to The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248. He went on to submit that, in the instant case, a reasonable bystander could quite reasonably form the view that the trial judge “… would have” a concluded view that her published decision was correct and that an appeal against her orders was without merit and potentially frivolous.
We point out at this stage that in making that submission the husband stated the test more strictly than the High Court did in The Queen v Watson; Ex parte Armstrong (supra) and all other cases there following. The proper test is that to which we refer in paragraph 49 of our judgment and that is the defined principle to which we have regard in coming to our determination.
In his written summary of argument the husband submitted that in the instant case, there were disputed facts placed before her Honour in relation to the application for security for costs, which required acceptance or rejection on the basis of the credibility of the respective deponents. He argued that her Honour had already “… published a very firm view that the husband was not to be believed” and had accepted the contents of the affidavits filed in support of the applications by the wife and other parties without permitting cross examination. He asserted that this could only be achieved through her Honour’s pre-determination that the husband was not to be believed “… in any case”.
In his oral submissions, the husband argued that her Honour had already formed a view about his credibility and that “… one might assume” she would continue to hold that view. In particular he made reference to the following extracts from her Honour’s judgment of 12 November 1997.
“I accept the husband’s evidence set out in paragraph 39 of his affidavit sworn 24^th of May 1995 …”.
…
“The husband was closely cross examined on the potential two year delay for settlement set out in the Land Contract. His evidence was that it was not his idea to wait so long, and the two year period had nothing to do with the required payment by the husband and wife of about $12,000 Stamp Duty at settlement. I reject that evidence. I do not believe him.”
…
“The husband’s evidence is that he had resigned entirely from Integrand and was not employed by the company in any capacity. I find however that the moneys were paid out at his direction. He was still signing cheques on the company after 30 November 1994. I reject his evidence entirely on this aspect. I do not believe him.”
…
“I find the husband to be an unsatisfactory and most unreliable witness. I reject almost entirely the evidence he gave concerning his relationship with Integrand after separation. I do not believe him. My findings reflect those parts of his other evidence which I accept. They are few. Where there is any conflict of evidence between Mrs Gillam and the husband, I prefer the evidence of Mrs Gillam.”
…
“As I have said, I place very little reliance on his evidence and any reliance that I do place (which is little) is reflected in my findings.”
It was the husband’s further submission that there was “… a discrepancy” between the settled extempore judgment delivered by her Honour on 22 December 1997 and the transcript of the proceedings on that day such as to lead a reasonable bystander to conclude that her Honour exhibited, inter alia, bad faith, misrepresented the truth and failed to approach “… the exercise of a broad discretion with an unbiased mind”. In particular, he referred to what her Honour had to say in her settled extempore reasons for judgment, namely:
“The conduct of the husband in that he has filed several, in my view, unnecessary applications in the property proceedings although, once again, I do not give weight to this fact”,
which he contrasted with that which she expressed immediately at the conclusion of argument, namely:
“Mr Finlayson has conducted himself in my view properly throughout the proceedings …”

The husband referred us to his submissions on 25 May 1998 when he complained to her Honour about this alleged discrepancy, the transcript of which reveals the following exchange:
“MR FINLAYSON: Yes. The next point is, and I have referred to it in my affidavit and annexures, there has been a difference between the reasons which you Honour gave extempore in relation to the orders of 22 December 1997 and the reasons which have been settled by your Honour.
HER HONOUR: Now, 22 December, they are on the file. Yes, here we are, document number 228, yes.
MR FINLAYSON: Now, in Court, your Honour, when canvassing the matters in relation to costs, your Honour said that you were of the view that I had conducted myself properly in the proceedings and before the Court when …
HER HONOUR: I think you behaved with proper courtesy and that was to your credit, Mr Finlayson.
MR FINLAYSON: Yes. Whereas in the settled reasons your Honour found that I had made several unnecessary applications to the Court which have not been argued before your Honour and there is a difference there between what your Honour said in Court and what your Honour has said in the separate reasons.
HER HONOUR: No, I don’t want to argue with you about that. Your manner of conducting yourself in Court was admirable. The fact that you made unnecessary applications is another matter altogether. What is your next point.
MR FINLAYSON: Well, the point is, your Honour, that your Honour found as a matter of fact in extempore that – in relation to that point one way and then settling the reasons a totally different reason comes out.
HER HONOUR: I am sorry if you think there was any inconsistency but, however, it is the settled reasons of course which are on the file. Anything else?”
It was submitted by Mr Mellows on behalf of the wife and the other parties that there was no evidence of actual or perceived bias in the evidence or affidavit material before the Court. He argued that the mere fact a trial Judge had decided an issue adversely to a party did not, without more, impute bias or a reasonable apprehension of bias on the part of the judicial officer when determining any subsequent application involving the same parties. In relation to the husband’s submission that her Honour had previously decided that he lacked credit as a witness, Mr Mellows submitted, and correctly, that her Honour did not decide any issues, in the proceedings the subject of this appeal, by reference to credit.
It was further submitted that, upon a proper analysis of the material before the Court the other complaints argued by the husband were not made out and that there was nothing said that would cause a reasonable observer to conclude that her Honour was biased. Mr Mellows pointed out that in the course of her judgment of 12 November 1997 her Honour said:
“The husband has at all times during the proceedings represented himself, and showed himself skilled in adversarial procedures as well as in knowledge of the law save and except in his final submissions.”
In so far as the alleged discrepancy between the extempore reasons for judgment on 20 December 1997 and the settled reasons for judgment was concerned, Mr Mellows submitted that that fact alone did not demonstrate that her Honour was biased.

B. CONCLUSION

In her judgment of 12 November 1997, her Honour made findings in relation to specific issues and otherwise made a determination as to whose evidence was to be preferred when in contest. This was a necessary function of her Honour in hearing and determining the issues before her. However, and without expressing a concluded view on the issue, for it is not necessary to do so given the husband’s concessions to which we refer in paragraph 47 of our judgment, it may have been arguable that her Honour’s finding as to the credit of the husband, in particular the last two findings cited in paragraph 39 earlier referred to, could be said to be general findings against his credit, such that if her Honour was called upon to make an assessment on this issue, she would be unlikely to consider the husband a witness of truth. See Livesey v The New South Wales Bar Association (1983) 151 CLR 288 at 300.
There was nothing in her Honour’s judgment of 25 May 1998 to which the husband could address our attention that could directly or by reasonable inference demonstrate that her Honour brought a biased or prejudiced mind to the task before her that day. Her Honour’s reference to an outstanding order for costs made against the husband was, in any event, to an uncontested fact.
Furthermore, the husband conceded, and properly so, that there was no finding by her Honour that she did not accept what he had to say in the course of submissions before her, and significantly for the purpose of our determination on this ground, the issue of credit bore no relevance in any event to the matters to be determined by her Honour.
In our view, the husband’s submissions dealing with the Court transcript of argument and her Honour’s settled extempore reasons for judgment on 12 December 1997 have no merit. In the settled extempore Reasons for Judgment, her Honour’s reference to the husband having filed … “ several … unnecessary applications” was not, as she said, a matter to which she gave weight in any event and appears to us to be merely a gratuitous, and in the circumstances, unnecessary comment.
The principles of law which apply in issues such as that argued by the husband are clear, namely:
“… a reasonable apprehension of bias exists if in all the circumstances the parties or the public might entertain a reasonable apprehension that the Judge might not bring an impartial and unprejudiced mind to the resolution of the question before him or her.”
Per Barblett DCJ, Baker and Burton JJ in Kennedy v Cahill (1995) FLC 92-605 at 82,035. See also Re. Watson; ex parte Armstrong (supra) per Barwick CJ, Gibbs, Stephen, Mason and JJ at 262; Livesey v The New South Wales Bar Association (supra) per Mason, Murphy, Brennan, Deane and Dawson JJ at 293-294; Re. JRL; Ex parte CJL (1986) 161 CLR 342 at 351-2 per Mason J (as he then was).
Given the aforesaid, the husband has not, in our view made out the ground relied upon. Finally, in disposing of this issue, we are compelled to say that the written submission put forward by the husband asserting that her Honour misrepresented the truth and exhibited bad faith was utterly without foundation and quite intemperate in the circumstances.
GROUND 2. JURISDICTION TO ORDER SECURITY FOR COSTS

A. SUBMISSIONS

The husband submitted that an order for security for costs on appeal pursuant to Order 32 rule 5 of the Rules is entirely within the appellate jurisdiction of the court which may only be exercised by the Full Court by virtue of s.28(3) of the Act, which provides:
“28(3)The jurisdiction of the Court in an appeal from a Judge of the Court or of the Supreme Court of a State or Territory shall be exercised by a Full Court.”
He submitted, and correctly, that the power to order security for costs under the Act is contained in s.117(2) which provides:
“117(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in so doing, the court may, subject to sub-section (2A) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.” (Emphasis added)
53. Section 4(1) of the Act defines “Court” as follows:
“court, in relation to any proceedings, means the court exercising jurisdiction in those proceedings by virtue of this Act.”
He submitted that Rules of Court may constrain or qualify the granting of orders for security for costs but they may not enlarge the jurisdiction of the Court nor alter statutory or Constitutional requirements in relation to the exercise of jurisdiction. He further submitted that Order 32 rule 5 (which we have set out in paragraph 21 of this judgment) purports to confer jurisdiction upon a judge of the court that made the decree appealed from, not the court entertaining the appeal, and that the rule is ultra vires as it “… would extend the express limitation on the power contained in s.117(2)”
The husband submitted that the rule making power should be construed in the context of the purpose of the Act, the overriding purpose of which is to provide an appeal as of right to, and under the control of the Full Court of the Family Court of Australia. He submitted that Order 32 rule 5 is invalid as it impedes free access to be heard by the Full Court and thus the independent operation of the appeal process.
The husband pointed out in the course of his submissions that in the Federal Court of Australia, Toohey J in Hoar v The Queen (1982) 56 FLR 459 held that “… the Court” in relation to an appeal, means the Full Court. On the other hand, he pointed out that Northrop J in Beard v Prestige Baking Industries Pty Ltd (1980) 51 FLR 454 held that in relation to security for costs, the express wording of s.56 of the Federal Court of Australia Act (1976) gives the jurisdiction to a single judge. He submitted that in 1997, the Full Court of the Federal Court held that interlocutory questions in relation to appeals are part of the appellate jurisdiction, but could be conferred upon a single judge by the principal Act (Grace Pushpa Wati v Minister for Immigration & Multicultural Affairs (1997) 148 ALR 578) and that in 1998, the Full Federal Court affirmed this approach (Hi Fert Pty Ltd & Anor. v Kiukian Maritime Carriers Inc. & Anor. (No. 2) (1998) 155 ALR 94). We propose to deal with these decisions later in this judgment for they depended very much upon the then wording of the relevant sections of the Federal Court of Australia Act and the rules made thereunder.
As we have earlier said, the husband submitted that the appellate jurisdiction in the Family Court of Australia is conferred upon the Full Court – see s.28(3) of the Act. He submitted that there is no section of the Family Law Act comparable with s.56 of the Federal Court of Australia Act, (set out in paragraph 77 of our judgment) and which Northrop J held granted jurisdiction in interlocutory matters in relation to appeals to a single judge. The husband submitted that the jurisdiction of a single judge of the Family Court to deal with interlocutory applications in appeals has been previously rejected by the court and referred us to Molier v van Wyk (1981) FLC 91-001.
It was submitted on behalf of the wife and the other parties that the applications for security for costs were filed in the proceedings before the Court, that her Honour was properly seized of the matter by reason of the nature of the applications and had the power to consider the same by virtue of s.117(2) of the Act and the provisions of Order 32 rule 5 of the Rules to which we have earlier referred.
It was the further submission of Mr Mellows that there is nothing in s.28 or elsewhere in the Act to prevent a judge, who has heard the trial, from making an order for security for costs where an appeal is pending. He referred to and relied upon what Northrop J had to say in Beard v Prestige Banking Industries Pty Ltd (supra) who held (relying upon s.56 of the Federal Court of Australia Act) that a single judge had power to make an order for security for costs. He submitted that it is a power which the Court must necessarily have “… to prevent abuse of its process and to carry out its proper functions”.
Mr Mellows submitted that, accepting the Family Court of Australia has appellate “jurisdiction”, the Rules specifically provide for that jurisdiction in its interlocutory stages to be exercised by a Judge of the Court in certain circumstances. He submitted that the power to order security for costs is clear and explicit in s.117(2) of the Act and does not depend upon the Rules, although the Rules deal with the practice and procedure involved. He further submitted that the Rule empowering “… the Court and a Judge of a Court” to grant security is consistent with s.117(2) of the Act, and indeed, it is contemplated by that section. He pointed out that there is a right of appeal from any order made by way of security and to apply for a stay of that order granting security, but that in these proceedings, no stay of the security order was made in favour of the husband, nor had the order for security been complied with.

B. CONCLUSION

In his submissions, the husband relied upon the judgment of Toohey J in Hoar v The Queen (supra). In that case the Applicant had applied (inter alia) to a single judge of the Federal Court of Australia for leave to file a Notice of Appeal against his conviction in the Supreme Court of the Northern Territory, on the ground of fresh evidence, and relied upon Order 52 rule 15(2) of the Federal Court Rules. The time for filing a notice of appeal had long expired. His application was refused. His Honour there held that the words “… the Court” in Order 52 rule 15(2) of the Federal Court Rules referred to the court exercising appellate jurisdiction, that is to say, the Full Court of the Federal Court of Australia. Section 25(1) of the Federal Court of Australia Act provided that the appellate jurisdiction of the Federal Court shall, “… subject to this section and to the provisions of any other Act” be exercised by a Full Court.
When that decision was handed down, Order 52 rule 15 of the Federal Court Rules provided:
“15(1)    The notice of appeal shall be filed and served –
(a)      within 21 days after –
(i)the date when the judgment appealed from was pronounced;
(ii)       the date when leave to appeal was granted; or
(iii)any later date fixed for that purpose by the Court appealed from; or
(b)within such further time as is allowed by the Court upon application made by motion upon notice issued within the period of 21 days referred to in the last preceding paragraph;
(2)Notwithstanding anything in the preceding sub-rule, the Court for special reasons may at any time give leave to file and serve a Notice of Appeal.”
63.      In the course of his judgment, Toohey J had this to say:
“… The applicant invokes sub-r.(2) which he says contains a power exercisable by a single judge as well as by a Full Court.
Order 52 is concerned with the appellate jurisdiction of the court and in that order ‘the court’ is the court exercising its appellate jurisdiction (O.52, r.1). By reason of s.25(1) of the Federal Court of Australia Act 1976 (Cth), that jurisdiction is, ‘subject to this section and to the provisions of any other Act’, to be exercised by a Full Court. Section 25(2) is by way of exception for it permits applications for leave or special leave to be heard ‘by a single judge or by a Full Court’. I do not think that s.25(2) may be construed so as to operate in the present case. True it is that leave is required, but it is leave to file a Notice of Appeal out of time. It is not an application for leave or special leave to appeal in the terms of s.25(2). That sub-section is concerned with situations in which no appeal may be brought to the Federal Court except by leave or special leave.
In my view the reference in O.52, r.15(2) to ‘the Court’ is a reference to a Full Court. The distinction is reinforced by the recent amendment to O.52, r.35 to permit “the court or a judge” to admit an appellant to bail.” (at 461)
His Honour expressed the view that the absence of power in a single judge of the Federal Court to extend time for filing a Notice of Appeal may well prove inconvenient and warrant some consideration, but made it quite clear, however, that as the rule then stood, he had no power as a judge of the Federal Court of Australia to entertain the application made in that court (at 463).
In Beard v Prestige Baking Industries Pty Ltd & Anor. (supra), the Respondent applied by way of Notice of Motion to a single judge for security for costs in an appeal filed by the Appellant. The application came on before Northrop J and the solicitor for the Appellant raised a preliminary objection that the motion had to be determined by a Full Court and that a court constituted by a single judge did not have jurisdiction to hear the motion. The solicitor relied upon Order 52 rule 20, which then provided “… Unless the court otherwise directs no security for costs of an appeal to the court shall be required”.
His Honour held that by reason of the provisions of s.56(1) and (5) of the Federal Court of Australia Act the court constituted by a single judge is not precluded by Order 52 rule 20 of the Federal Court Rules from hearing an application for security for costs of an appeal. He had this to say:
“In O.52, the word “Court” is defined to mean, unless the contrary intention appears, ‘the Court exercising its appellate or related jurisdiction under Part III of Division 2 of’ the Federal Court of Australia Act (1976) (Cth). I ruled against that submission and held that in r.20, the word “Court” when first used included a court constituted by a single judge. In so ruling, I referred to s.56 of the Federal Court of Australia Act. That section provides, in sub-s.(1), as follows: ‘The court or a judge may order a plaintiff in a proceeding in the Court or an appellant in an appeal to the Court to give security for the payment of costs that they be awarded against him.’ Sub-section (5) reads: ‘This section does not affect the operating of any provision made by or under any other Act or by the Rules of Court for or in relation to the furnishing of security’. Section 59(2)(n), makes specific provision that the judges of the Federal Court may, in particular, make provision for or in relation to the furnishing of security.
In all of those circumstances, it appeared to me that the provision of O.52, r.20 did not preclude the Court constituted by a single judge from considering an application for security for costs and, in this regard, upheld the submission of the respondent to the appeal who is moving the court as so constituted for the order for security of costs.”
In support of his reasoning, his Honour referred to Order 58 rule 16 of the rules of the Supreme Court of Victoria, s.35 of the High Court Procedure Act (1903) (Cth), Order 70 rules 9 and 10 of the High Court Rules and Order 28 of the Federal Court Rules.
Section 25(2) of the Federal Court of Australia Act is a statutory exception to s.25(1) and provides jurisdiction for a “… single Judge” to hear and determine a limited number of applications within the appellate jurisdiction of the Court which shall otherwise (subject to s.25 and the provisions of any other Act) be exercised by the Full Court. So much was made perfectly clear by Toohey J in Hoar v The Queen (supra). When his Honour made that decision, s.25(2) of the Federal Court of Australia Act provided as follows:
“(2)Applications for leave or special leave to appeal to the Court from a judgment of another court may be heard and determined by a single Judge or by a Full Court and the rules of court may provide for enabling such applications to be dealt with, subject to conditions prescribed by the Rules, without an oral hearing.”
By the Laws and Justice Amendment Act (No. 115 of 1990), which came into effect on 21 December 1990, s.25(2) of the Federal Court of Australia Act was omitted and the present sub-section substituted, namely:
“(2)Applications:
(a)for leave or special leave to appeal to the court; or
(b)for an extension of time within which to institute an appeal to the court; or
(c)for leave to amend the grounds of appeal to the court; or
(d)to stay an order of a Full Court;
may be heard and determined by a single Judge or by a Full Court.”
Order 52 of the Federal Court Rules deals with Appeals and the noun, “… Court” is there defined to mean “… the Court exercising its appellate or related jurisdiction under Part III Division 2 of the Act”. As we said earlier, in Hoar v The Queen (supra) Toohey J considered that his conclusion was re-enforced by an amendment to Order 52 rule 35 prior to his decision permitting “… the Court or a Judge” to do certain things. Since his Honour’s decision however, Order 52 rule 15(2) has also been amended to provide:
“15(1) …
(2)Notwithstanding anything in the proceeding sub-rule, the Court or a judge for special reasons may at any time give leave to file and serve a notice of appeal”. (Emphasis added)
That amendment thus made it quite clear that a single judge (but exercising appellate jurisdiction) could hear and determine an application of the kind that was before his Honour. See also Wolcott & Anor v Davis & Anor (1984) No. NTG 31 and 306 of 1984 (per Muirhead J at paragraphs 7 & 8).

It is significant, in our view, that since the decision of Northrop J in Beard v Prestige Baking Industries Pty Ltd (supra) Order 52 rule 20 has been amended to read:
“… Unless the Court or a judge otherwise directs no security for costs of an appeal to the court shall be required”. (Emphasis added)
It appears to us that this amendment put to rest the contentious issue that then confronted his Honour. This fact was subsequently considered by him in RD Werner & Co. Inc. v Bailey Aluminium Products (1987) 78 FLR 538 at 542 where his Honour, having set out the provisions of s.57 of the Federal Court of Australia Act together with Order 28 rules (5) and (6) and Order 52 rule 20 had this to say:
“In Beard v Prestige Baking Industries Pty Ltd (1980) 51 FLR 454 the Court, as presently constituted, held that the Court constituted by a single judge was not precluded from making an order that an appellant give security for costs of an appeal. Thereafter, O52, r20 was amended by inserting the words ‘or a judge’ immediately after the words ‘the court’ where first appearing thereby making it clear that the court, constituted by a single judge, had power to make an order for security for costs on an appeal; see SR No. 217 of 1982.”
In the course of argument before us, reference was made to Grace Pushpa Wati v Minister for Immigration & Multicultural Affairs (supra) being a decision of the Full Court of the Federal Court of Australia which was determined upon the particular provisions of ss.24(1), 24(1A), 25(1) and 25(2) of Part III Division 2 (Appellate Court and Related Jurisdiction) of the Federal Court of Australia Act and Order 52 rule 15(2) of the rules made thereunder. The Court applied Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424 (Fed Ct/FC) and concluded that ss.24(1A) and 25(2) of that Act, when read together, permitted an application to be made to either a single judge or a Full Court of the Federal Court for leave to appeal from an interlocutory judgment. The plain statutory language of s.24(1A) and s.25(2) was helpfully explained by the Full Court in Thomas Borthwick & Sons (Pacific Holdings) Ltd v Trade Practices Commission (supra at 431) as follows:
“Applications for leave to appeal to the Court or for an extension of time within which to institute an appeal are heard and determined by the Court in the exercise of its appellate jurisdiction, not its original jurisdiction, notwithstanding that such applications may be heard not only by a Full Court but by a single judge. A single judge may sit either in open court or in chambers: see the definition of ‘judge’ in s.4 to which we referred earlier. In the expression ‘the court or a judge’, which appears in s.24(1A), the term ‘Judge’ means a judge sitting in chambers. The combined effect of ss 24(1A) and 25(2) is that applications for leave to appeal to the Court and applications for extension of time to appeal shall be heard and determined by a Full Court or a single judge sitting either in open court or in chambers. By whomsoever the jurisdiction is exercised it is exercised as part of the Court’s appellate jurisdiction. This conclusion is plain from the language of ss 24 and 25.”
Accordingly, it is clear that from the statutory language of those provisions of the Federal Court of Australia Act, a single judge may only exercise a particular limited appellate jurisdiction. No similar or analogous statutory provisions were contained within the Family Law Act at the time of the hearing both before her Honour and ourselves. Since then, s.94 of the Family Law Act has been amended by inserting s.94(2D) which is in the following terms:
“(2D) Applications:
(a)for an extension of time within which to institute an appeal under sub-section (1) or (1AA); or
(b)for leave to amend the grounds of an appeal under sub-section (1) or (1AA); or
(c)to reinstate an appeal under sub-section (1) or (1AA) that, because of the standard Rules of Court, was taken to have been abandoned; or
(d)to stay an order of a Full Court of the Family Court made in connection with an appeal under sub-section (1) or (1AA);
may be heard and determined by a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal division available, or by a Full Court of the Family Court.”
[Sub-section (2D) was inserted by Family Law Amendment Act 2000 (No. 143 of 2000)].
Order 32 of the Rules, as we said, deals with all rules concerned with the exercise of the appellate jurisdiction of the Family Court and is the framework within which the Full Court proceeds. Order 32 rule 5 of the Rules deals with security for costs where an appeal has been instituted. An appeal is defined in Order 32 rule 1 as “… an appeal to the Full Court of the Family Court of Australia”.
Accordingly, where the appellate jurisdiction of the Court has been invoked, as it was in the proceedings before her Honour, Order 32 rule 5 purports to enable:
“(a)The Judge who made the decree appealed from; or
(b)If that Judge is not reasonably available – another judge of the court in which the decree was made; …”
to make an order for security for costs on such terms as the Judge thinks fit.
It is significant, in our view, that Order 38 rule 30 of the Rules deals with applications for costs when the Court is exercising its original jurisdiction (see s.28(1) of the Act) including an application for security for costs, and is in the following terms:
“RULE 30       APPLICATION FOR COSTS ORDER
30       An application for a costs order may be made:
(a)      at any stage of proceedings; or
(b)within 28 days after the date on which the relevant decree in the proceedings was made; or
(c)within any further time allowed by the court.
RULE 31ASSESSMENT OF COSTS
31(1)If the Court proposes to make a costs order, the court may assess the amount of costs or security for costs to be paid under the order.
31(2)For its assessment, the court may obtain from the person in whose favour the costs order is to be made, an estimate of the person’s costs in the proceedings.

31(3)The court may make any of the following costs orders:
(a)an order that a specific amount be paid by one person to another person;
(b)an order that the costs payable be taxed;
(c)an order that the costs be paid by a person;
(d)an order for security for costs.

31(4)…
31(5)…”

When a court at first instance “… in proceedings” under the Act makes an order for security for costs pursuant to s.117(2) of the Act, the relevant rules for consideration are those set out in Order 38 rule 30 of the Rules.
In contrast to s.117(2) of the Act, s.56 of the Federal Court of Australia Act deals with the issue of security for the payment of costs, and is in the following terms:
“56(1)The Court or a Judge may order an applicant in a proceeding in the Court or an appellant in an appeal to the court to give security for the payment of costs that may be awarded against him or her.
(2)The security shall be for such amount, and given at such time and in such manner and form, as the Court or Judge directs.
(3)The Court or a Judge may reduce or increase the amount of security ordered to be given and may vary the time at which, or manner or form in which, the security is to be given.
(4)If security, or further security, is not given in accordance with an order under this section, the court or a judge may order that the proceeding or appeal be dismissed.
(5)This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the furnishing of security.” (Emphasis added)
Provision for security for costs is otherwise contained in Order 28 and Order 52 rule 20 of the Federal Court Rules. In R.D. Werner & Co. Inc. v Bailey Aluminium Products Pty Ltd (1988) 80 ALR 134, Woodward and Foster JJ said (at 144):
“… In our opinion, O28 is intended to apply to appeals. It is sufficiently general in its introductory terms to do so and, without it, there is no detailed scheme to be applied to security for costs of an appeal, which is clearly provided for by s.56 of the Federal Court of Australia Act 1976 and O52, r20 of the Rules made under s.59 of that Act.”
We have earlier in this judgment referred to the Form 8 Application of the other parties filed on 10 March 1998. That application was supported by an affidavit sworn by the solicitor for the other parties deposing that the husband had no capacity to satisfy any award as to costs that might be made in their favour “… in the appeal before the Full Family Court in the event that the appeal was to be unsuccessful”. Similarly, the Form 8 Application filed by the wife on 29 April 1998 was also supported by an affidavit sworn by the solicitor for the wife in the proceedings. She too deposed that the wife sought security for costs in the sum of $17,000 “… in relation to all current appeals by the Appellant against her in the Family Court as counsel has estimated these will be her likely costs given the size and scope of the appeals.”
Having regard to the definition of “… court” in s.4(1) of the Act, and to the fact that, by s.28(3), jurisdiction in appeals is vested in a Full Court, we accept the husband’s submission that s.117(2) confers no jurisdiction on a single judge (as distinct from the Full Court) to make an order for security for the costs of an appeal to the Full Court from a decision of a judge exercising the original jurisdiction of the Court. No other section of the Act purports to vest that jurisdiction in a single judge of the Court, but Order 32, rule 5 purports to do so. The ultimate question, therefore, is whether that rule is a valid one, or whether, as the husband contends, it is ultra vires the rule making power conferred upon judges of the court by s.123(1) of the Act. That section provides, relevantly as follows:
“123(1)[rules may provide for certain matters] The Judges, or a majority of them, may make Rules of Court not inconsistent with this Act, providing for or in relation to the practice and procedure to be followed in the Family Court and any other courts exercising jurisdiction under this Act, and for and in relation to all matters and things incidental to any such practice and procedure, or necessary or convenient to be prescribed for the conduct of any business in those courts and, in particular:
…”
There then follows, in paragraphs (a) to (u), a list of particular matters in respect of which the rule-making power is expressly conferred. However, as none of those particular matters could even arguably be said to confer a power to make a rule granting jurisdiction to a single judge to make a security for costs order in relation to an appeal, it is necessary to consider whether such a rule falls within the general words “… providing for or in relation to the practice and procedure to be followed [in the Court] and for and in relation to all matters and things incidental to such practice and procedure or necessary or convenient to be prescribed for the conduct of business [of the Court].”
Those general words of the section were the subject of consideration by the High Court in Harrington v Lowe (1996) 190 CLR 311, in which that Court held, unanimously, that Order 24, rules 1(8) and (9) of the Family Law Rules as they then stood (which purported to render inadmissible, in any proceedings, evidence of anything said in the course of a conference held pursuant to that rule) were invalid. In so holding, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ, in their joint judgment, said this (at 324-5):
“The power conferred by s.123 makes provision for or in relation to practice and procedure, and matters and things incidental to such practice and procedure or necessary or convenient to be prescribed for the conduct of court business. These are broad but limited terms. The power does not authorise the making of regulations which (i) vary or depart from, and thus are inconsistent with [See Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 260], the positive provisions of the Act such as s.79A(1), or (ii) go beyond the field of operations marked out by the Act, …”

83. In his separate concurring judgment, Kirby J said this (at 341-2):
“2.In any case, the sole grant of power which supports the subject rule is one confined to matters ‘in relation to the practice and procedure to be followed in the Family Court’. That compendious phrase has conventionally been given a broad operation [Hooper v Hooper (1995) 91 CLR 529 at 538; White v White [1947] VLR 434 at 440; Price v Price [1963] NSWR 1214 at 1222]. Especially in the context of a power to make rules, to cover the multitude of subsidiary matters which can arise in the operation of a court with a complex jurisdiction, the phrase should not be narrowly construed. Nor should what is ‘practice and procedure’ be fixed in time so that court proceedings are unable to adapt to new community needs and different techniques of judicial administration. But in the end, a point will be reached where the rule-maker will exceed the boundaries of permissible rule-making on matters in relation to ‘practice and procedure’ and intrude into rule-making with respect to the substantive rights of the parties. I do not pretend that there is a bright line which divides rules with respect to practice and procedure from rules with respect to substantive rights. The two are often inter-connected. Indeed, such has been the history of the common law where procedural remedies have often given rise to substantive rights. Minds may therefore differ as to the whereabouts of the boundary. The task of the court is to characterise a rule which is challenged on the ground that it has exceeded the legislative grant of power. Such a rule may exhibit the appearance of having a dual character: pertaining in some ways to procedural matters but in other ways having an effect on substantive rights [Williams v Melbourne Corporation (1933) 49 CLR 142 at 158]. In deciding how to characterise the challenged rule, caution should be exercised in adopting definitions of what is ‘procedural’ devised for other purposes of the law, eg in private international law [Circosta v Lilly (1967) 61 DLR (2d) 12 at 15; cf Nygh, Conflict of Laws in Australia, 6^th ed (1995) at 254]. The purpose of the classification here must be kept in mind if it is to be accurately performed. That purpose, relevantly, is to decide whether the subject matter of the challenged rule is no more than a procedural pre-condition to the enjoyment of rights judicially recognised or an abrogation of substantive rights, beyond the power of the subordinate law-maker [See discussion cited in Taylor v Guttilla (1992) 59 SASR 361 at 376]. The mere fact that a procedural rule has effect upon substantive rights is not enough to strip it of its procedural character [Taylor (1992) 59 SASR 361 at 366]. But if the rule goes beyond the provision of the means by which substantive rights are to be enforced or protected [Karasaridis v Kastoria Fur Products (1984) 37 SASR 345], the decision-maker will be entitled to conclude that what has been done, under the guise of a procedural rule, is, in fact, impermissibly to alter substantive rights. By law, that is forbidden to the rule-maker.”

In our opinion, Order 32 rule 5 of the Rules is one which (to adopt the words of the majority judgment in that case) varies or departs from and is inconsistent with the positive provisions of the Act (namely ss.28(3) and 117(2)), and/or goes “… beyond the field of operation marked out by the Act”. Further, in our view, the Rule “… goes beyond the provision of the means by which substantive rights are to be enforced or protected” and in fact purports “… impermissibly to alter substantive rights” (to adopt the words of Kirby J). Accordingly, in our view, it is ultra vires the rule making power, and is invalid.
In summary, there being no provision in the Act similar or equivalent to s.56 of the Federal Court of Australia Act empowering a single judge to order security for costs of an appeal, and O.32, r.5 of the Rules being invalid, her Honour had no jurisdiction to make such an order, and any application for such an order, were it to be made, should have been made to the Full Court, which is the Court invested with jurisdiction in appeals. This ground of appeal is therefore upheld.
The above conclusion presents a result which is undoubtedly inconvenient, not only to litigants but also to the Court, from the point of view of the efficient and cost-effective administration of its business. We would recommend that the Attorney-General give urgent consideration to the making of a further amendment to the Act to empower a single judge of the Court (perhaps a member of the Appeal Division or, if none is reasonably available, another judge) to exercise this aspect of the appellate jurisdiction of the Court. In the meantime, such applications must be made to and dealt with by a Full Court.
GROUND 3. JURISDICTION TO ORDER A STAY

A.SUBMISSIONS

It was submitted by the husband that this Ground of Appeal is “… a distinct” issue and not contingent upon whether or not the appeal is successful or otherwise in relation to ground 2. He submitted that unlike the situation with security for costs, there is no rule, order or section even purporting to grant to a trial Judge the jurisdiction to order a stay of an appeal from his or her own decision. Further, he submitted that a trial Judge cannot create orders binding the appellate court nor circumvent the right of appeal to that court contained in s.94 of the Act.
On the other hand, Mr Mellows submitted that the Court has both express and inherent power to order a stay of proceedings pending appeal and referred to Fauna Holdings Pty Ltd & McGilivray v Mitchell (2000) FLC 93-024. He submitted that Order 32 rule 4 and Order 4 rule 3 of the Rules explicitly empower a court to order a stay, and that Order 32 rule 4 of the Rules applies “ … in relation to appeals and empowers the trial Judge, in appropriate circumstances to make such an order.”
89. Order 32 rule 4 as at the hearing of the appeal, provided:
“RULE 4STAY OF PROCEEDINGS
4(1)[Appeal is not stay of proceedings] Subject to subrule (2), an appeal does not operate as a stay of proceedings or invalidate any intermediate act or proceedings.
4(2)[Judge may stay execution or operation] Where an appeal has been instituted:
(a)the Judge who made the decree appealed from; or
(b)if that Judge is not reasonably available – another Judge of the court in which the decree was made;
may make an order, on such terms as the Judge thinks fit, staying the execution or operation of the decree wholly or in part until the appeal is decided.
4(3)…”
[The subsequent amendment to sub-rule (2) effected by SR2000 No. 172, r.3 and Schedule 1, is of no relevance to the determination of this appeal.]
He submitted that such a power has been upheld in the Federal Court (Patton v Minister of Defence (1987) 13 FCR 476; Carter v Jeff Layton & Co. (1993) 43 FCR 392) and by the High Court of Australia (Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No. 1) (1986) 161 CLR 181).

B. CONCLUSION

In his submissions, Mr Mellows sought to rely on Patton v Minister of Defence (supra), Carter v Geoff Layton & Co. (supra) and Jennings Constructions Limited v Burgundy Royale Investments (No. 1) (supra) in support of the proposition that both the Federal Court of Australia and the High Court of Australia have held that in appropriate circumstances a single judge has power to make an order for a stay in relation to appeals. Those authorities bear some analysis.

The issue of whether or not a single judge had power to stay judgments of the Full Court was not a clearly decided one in the Federal Court of Australia, certainly prior to the amendments to s.25 of the Federal Court of Australia Act by the addition of s.25(1) pursuant to the Law and Justice Legislation Amendment Act (No. 115 of 1990) (Cth) and to which we have earlier referred.
Prior to those amendments in Patton v Minister for Defence (supra) Pincus J held that he was “… unpersuaded” (at 478) that a single judge of the Court lacked jurisdiction to stay an order for costs made by the Full Court of the Federal Court pending application to the High Court of Australia for special leave to appeal. In the course of his judgment, his Honour referred to Hempel v Moore (1987) 70 ALR 714 where French J (at 718-19) having considered s.25(1) of the Federal Court of Australia Act had this to say:
“In the present case the appellant’s motion is brought in appeal proceedings.
In the exercise of the powers conferred upon it in its appellate jurisdiction by s.28 of the Act, the court may have occasion, in making an order under s.28(1)(b), to make an order of a kind that could have been made under s23 in its original jurisdiction. But there is on the face of it no power in a single judge to make interlocutory orders under s.23 in pending appeal proceedings.”
Pincus, J distinguished that decision from that before him as the matter was to go to the Full Court of the Federal Court of Australia and had not passed that stage. His Honour then went on to say:
“… I should say that I am unpersuaded that the court, more particularly, a single judge of the court, lacks jurisdiction to make such an order as is sought. Further, I cannot accept the contention that if such an application as this were made to the Full Court it would be an exercise of its appellate jurisdiction. That jurisdiction would appear to me now to be exhausted, and an application for a stay pending the pursuit of this matter to the High Court cannot, in my respectful opinion, properly be described as invoking this court’s appellate jurisdiction.”
His Honour was of the opinion that the power to grant a stay in such circumstances was sourced in Order 37 rule 10 of the Federal Court Rules and under s.23 of the Federal Court of Australia Act.
The view held by Pincus J was not shared by French J in Trade Practices Commission v Manfal Pty Ltd and Ors. (1990) 99 ALR 783. In that case, the threshold question was whether or not a single judge exercising original jurisdiction of the Federal Court of Australia, could make an order staying the operation of an order of the Full Court of the Federal Court of Australia until the hearing and determination of an application for special leave to the High Court of Australia. His Honour held that no such power existed in a single Judge and characterised the stay of a judgment of the Full Court as the exercise of the appellate jurisdiction of the court which was, by s.25(1) of the Federal Court of Australia Act, to be exercised by a Full Court. In the course of his judgment, French J had this to say (at 787):
“In my opinion, the nature of the appellate jurisdiction exercised by the court and the specific powers conferred on it in that jurisdiction are inconsistent with a construction of the power conferred by s.23 that would authorise the making of orders by a single judge interfering with orders made under s.28 by a Full Court. In Patton v Minister for Defence (1987) 13 FCR 476; 71 ALR 637, Pincus J considered that, sitting as a single judge, he had power to stay an order of the Full Court. His Honour rejected the contention that if such an application were to be made to a Full Court its consideration would be an exercise of appellate jurisdiction. That jurisdiction was, in his Honour’s view, exhausted upon the disposition of the appeal. He concluded that a stay order could be made in relation to the orders of the Full Court and that the authority to do so resided in O37, r10 of the Federal Court Rules and s.23 of the Act. Spender J took a similar approach in Multicoin Amusements Pty Ltd v Avel Pty Ltd (Federal Court (Spender J), G67/89, 16 March 1990, unreported) although jurisdiction was not disputed in that case. I respectfully disagree with their Honours, although I accept that as a matter of convenience a single judge should be able to make orders of the kind sought, especially in the smaller capitals, Brisbane, Adelaide and Perth with a small number of resident judges. However, in my opinion, once the Full Court has made an order then absent some express statutory authority, only the Full Court or the High Court may stay its operation. This is consistent with the position which I adopted in Hempel v Moore (1987) 70 ALR714 and referred to in Tuncak v Young (1987) 14 ALD 286. For these reasons, in my opinion, the motion cannot succeed …”
Subsequently, in Carter v Geoff Layton & Co. Pty Ltd (supra) Cooper J considered Patton v Minister for Defence (supra) and Trade Practices Commission v Manfal Pty Ltd (supra) and noted that by s.49 and the Schedule to the Law and Justice Legislation Amendment Act (No. 115 of 1990) (Cth), s.25(2) of the Act was amended to make provision for applications (inter alia) to stay an order of a Full Court to be heard and determined by a single judge or by a Full Court. That amendment, as we said, came into effect on 21 December 1990. His Honour had this to say (at 393):
“If, as French J held, the granting of a stay in cases such as the present is the exercise of the appellate jurisdiction of the court, then s.25(2)(d) now empowers a singe judge to grant a stay. If, as Pincus J held, the appellate jurisdiction is exhausted, O37, r10 and s.23 of the Act provides the power to grant a stay in appropriate cases. It is unnecessary to determine which view is correct as it is clear, in my opinion, that a single judge of the court has the power, concurrently with a Full Court, to stay a judgment, which is a final order of the Full Court, pending determination of a special leave application to the High Court of Australia.”
In our view, Order 32 rule 4 of the Rules is quite clear in its terms, and was best explained in Clemett (1981) FLC 91-013 (Full Court) when dealing with Regulation 120(8A) of the former Family Law Regulations (in similar terms to Order 32 rule 4) namely:
“… The staying of the operation of the decree means in other words that the decree in its operative effect is suspended. It is obviously not taken away. It remains there. It may be suspended so that it does not operate to confer rights upon the person who has obtained the decree. Those rights remain in suspension until the Full Court determines whether that decree was validly or properly made or not”. (at 76,176)
Order 32 rule 4 of the Rules, as they were when her Honour ordered that the hearing of the appeals (No. SA76(i) of 1997 and No. SA76(ii) of 1997) filed by the husband on 12 December 1997 be stayed until he had satisfied an order for security for costs collaterally made by her Honour, did not, in our view, enable her to make such an order. Her Honour purported to order a stay of an appeal from her decision filed by the husband on 12 December 1997 and not the execution or operation of the actual order or decree made by her in the property proceedings on 12 November 1997. In so doing, her Honour, acting as a single Judge, purported to make an order in the appellate jurisdiction of the Family Court of Australia, which, in the absence of express statutory authority, she cannot do.
Finally, Mr Mellows sought to rely upon the “… inherent” power in the Court to order a stay of proceedings pending appeal and relied upon Fauna Holdings Pty Ltd and McGillivray & Ors. v Mitchell (supra). In these proceedings, Fauna Holdings Pty Ltd (“Fauna”) and the others sought a stay of orders made by Martin J in the Family Court of Western Australia whereby Fauna was ordered to pay a fine of substantial monies and the others sentenced to imprisonment. The orders were originally stayed by Martin J pending appeals to the Full Court of the Family Court of Australia. The appeal was subsequently heard and dismissed. Later, Fauna and the others filed applications for a stay of the trial Judge’s orders pending an application by them for special leave to appeal to the High Court of Australia from the decision of the Full Court. The matter came on for hearing before the Full Court.
At the hearing before that court, the Respondent submitted 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 the proceedings were not an appeal within the meaning of Order 32 rule 4 of the Rules. The applicants argued that the power to grant a stay was within the inherent jurisdiction of the Full Court and relied upon the decision of Brennan J (as he then was) in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No. 1) (supra) and Gummow J in De Lewinski v Department of Community Services (1996) FLC 92-678.
The Full Court held that it was not functus officio, that its jurisdiction was not confined to hearing appeals, and that the power to grant a stay of the trial Judge’s order pending a proposed appeal from its rejection of an appeal against that order was within the inherent jurisdiction of the Full Court.
That case, however, is clearly distinguishable from this, because the Full Court there was being asked to stay the order of the court below, which it had affirmed, by dismissing the appeal. It was not being asked to stay proceedings in the High Court on appeal from its decision, which would be more analogous to the order made by the trial Judge in this case, staying the appeal from her own judgment.
The inherent jurisdiction of the Court is one that, as Brennan J said in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No.1) (supra) is “… seldom invoked and rarely exercised”. This is not such a case where the “… inherent power”, or more correctly, the “… incidental and necessary power” that the Court has, is necessary to be exercised in order to control and regulate the proceedings before us so as to avoid injustice. See Re. P’s Bill of Costs (1982) FLC 91,255 per Evatt CJ and Fogarty J at 77,417 and DJL v The Central Authority (2000) FLC 93-015 at 87,268, per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ. Accordingly, this submission is rejected.
In our view, therefore, her Honour’s order that the hearing of the husband’s appeals in appeal proceedings No. SA76(i) of 1997 and No. SA76(ii) of 1997 be stayed, was beyond power and accordingly, this ground of appeal must also be upheld.

ADDITIONAL MATTERS

The husband has appealed against the orders for costs made against him in favour of the wife and the other parties by her Honour. As the husband’s appeal is to be allowed, the basis for those orders has dissipated, in which circumstances we propose to allow the appeal against the costs orders and set them aside.

COSTS

In the event that his appeal was successful, the husband submitted that there is a vast discrepancy in the financial resources of the parties. He alleged that he has no assets and is otherwise in receipt of an income of (E) $60,000 per annum. He submitted that he had engaged professional assistance to prepare the Appeal Books and had received professional advice, but had not, as at that time, received any account for those services rendered. In the circumstances, he submitted that an order be made that his costs be taxed and that the wife and the other parties be responsible for payment of his taxed costs.
On the other hand, in the event that the appeal was allowed, Mr Mellows submitted that the wife is “… a person of modest means”, is unemployed, that the other parties “… have means” and are semiretired. His submission in relation to the other parties went no further than that. He otherwise made no submission in relation to that which was put by the husband. He submitted that a certificate pursuant to the provisions of the Federal Proceedings (Costs) Act 1981 be granted in favour of the wife and the other parties.
In our view, the circumstances justify the making of an order for costs in favour of the husband in relation to the appeal. We would order that the wife and the other parties be jointly and severally responsible for the husband’s costs of and incidental to the appeal as agreed or failing agreement as taxed. We are also of the view that, in the circumstances, it is appropriate to grant to the wife and the other parties a costs certificate pursuant to the provisions of s.6(3)(a) of the Federal Proceedings (Costs) Act 1981.

ORDERS

We therefore make the following orders:-
1.That the appeal be allowed.
2.That Order 1 made on 25 May 1998 be set aside and in lieu thereof order:
“1.That the application of the other parties filed on 10 March 1998 and the application of the wife filed on 29 April 1998 be dismissed.”
3.That Order 2 made on 25 May 1998 be set aside.
4.That the wife and the other parties jointly and severally pay the husband’s costs of and incidental to the appeal; such costs to be as agreed or failing agreement as taxed.
5.That the Court grants to the wife and the other parties a costs certificate pursuant to the provisions of s.6(3) of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the wife and the other parties in respect of the costs incurred by her and by them in relation to the appeal.
I certify that the preceding 108 numbered
paragraphs are a true copy of the
reasons for judgment delivered by
this Honourable Full Court.

Associate