Fowles & Fowles
[2023] FedCFamC1A 238
•20 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Fowles & Fowles [2023] FedCFamC1A 238
Appeal from: Fowles & Fowles (No 4) [2023] FedCFamC1F 819 Appeal number: NAA 305 of 2023 File number: MLC 8587 of 2015 Judgment of: AUSTIN J Date of judgment: 20 December 2023 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REINSTATEMENT – Where the applicant’s appeal was deemed abandoned due to his failure to file a draft appeal index within the time prescribed by r 13.14(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where one hour before the appeal book index was due the applicant lodged for filing an Application in an Appeal seeking an extension of time within which to file it – Where the appeal registrar rejected the Application for filing – Where the Application could not have been served, heard and determined within the time the appeal book index was due and it would have been futile to accept the Application – Where no prejudice could accrue to the respondent by the appeal’s reinstatement after such a short interlude of abandonment – Where the respondent sought security for her costs of the appeal – Security for costs ordered – Application to reinstate appeal granted. Legislation: Family Law Act 1975 (Cth) Pt VIII, s 75 and s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 38
Federal Proceedings (Costs) Act 1981 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.02, 13.10, 13.12, 13.14
Cases cited: Allan & Ors & Allan & Ors (2014) FLC 93-606; [2014] FamCAFC 162
Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220; [1986] HCA 13
Frazier & Valdez (2016) FLC 93-729; [2016] FamCAFC 163
Gordon v Tolcher (2006) 231 CLR 334; [2006] HCA 62
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84
Number of paragraphs: 64 Date of hearing: 20 December 2023 Place: Newcastle (via Microsoft Teams) Counsel for the Applicant: Mr Wyles KC & Ms Frederico Solicitor for the Applicant: Barry Nilsson Counsel for the Respondent: Mr Sheales Solicitor for the Respondent: Lander & Rogers ORDERS
NAA 305 of 2023
MLC 8587 of 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR FOWLES
Applicant
AND: MS FOWLES
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
20 DECEMBER 2023
THE COURT ORDERS THAT:
1.The following documents sent to the appeal registrar at 3.31 pm on 1 December 2023 are accepted for filing and are deemed filed on 1 December 2023:
(a)the Amended Notice of Appeal dated 1 December 2023;
(b)the Application in an Appeal dated 1 December 2023; and
(c)the affidavit of William David Stidson, affirmed on 1 December 2023.
2.The appeal is re-instated in the form comprised within the Amended Notice of Appeal deemed filed on 1 December 2023.
3.The time for the appellant to file the draft appeal book index is extended to 4.30 pm on Wednesday 31 January 2024.
4.The appellant shall pay the sum of $100,000 to the respondent’s solicitors in trust by way of security for the respondent’s costs of and incidental to the appeal by 4.30 pm on Thursday 1 February 2024, in default of which the appeal stands dismissed.
5.Leave is granted to the respondent to file and serve a Notice of Cross Appeal by 4.30 pm on Friday 19 January 2024.
6.Orders 1(b), 3 and 13 made by the primary judge on 6 October 2023 are stayed, pending determination of the appeal.
7.Otherwise, save as to the respondent’s outstanding costs application:
(a)the Application in an Appeal deemed filed on 1 December 2023 is dismissed;
(b)the Application in an Appeal filed on 5 December 2023 is dismissed; and
(c)the Response to an Application in an Appeal filed on 14 December 2023 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Fowles & Fowles has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
Before the Court is an application to review a decision made by the appeal registrar to reject and not file the documents proffered by the applicant for filing approximately one hour before the appeal was deemed abandoned under r 13.14(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) for his failure to file a draft appeal book index in time (r 13.14(2)(a)(i)).
The review application is opposed but, in the alternative, the respondent seeks additional relief.
BACKGROUND
On 6 October 2023, a judge of the Federal Circuit and Family Court of Australia (Division 1) made orders to determine a financial cause contested between the parties under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”).
The cause was a drawn-out affair. The proceedings were commenced in 2015. The trial started in March 2018, but occupied 43 days spread over more than three years and did not end until September 2021. Written submissions (excluding those relating to costs) were not complete until September 2022. Judgment was reserved for more than a year before it was delivered in October 2023.
The primary judge found, allowing for the applicant’s non-disclosure, the parties’ identifiable assets and superannuation had a combined net value of just under $7 million (at [388]–[390]).
Her Honour found the parties’ contribution-based entitlements to be equal (at [418]), but that an adjustment of 10 per cent in the respondent’s favour was warranted by reasons of the factors prescribed by s 75(2) of the Act (at [463]). The overall result was the respondent’s entitlement to 60 per cent and the applicant 40 per cent of the identifiable assets and superannuation.
In addition, the primary judge determined to dismiss the applicant’s application to discharge former spousal maintenance orders and relieve him from the liability of arrears (at [468]–[479]), but his Honour did dismiss the respondent’s application for lump sum spousal maintenance (at [480]–[483]).
The parties’ applications in respect of child support were dismissed (at [484]).
The applicant filed his appeal from the property settlement orders within time on 3 November 2023.
By operation of the Rules, the applicant had until 4.30 pm on Friday 1 December 2023 to file his draft appeal index.
At 3.31 pm on that day, the applicant sent an email to the appeal registrar requesting that these documents be filed: an Amended Notice of Appeal; an Application in an Appeal; and an affidavit sworn by the applicant’s solicitor in support of the interlocutory application.
The Amended Notice of Appeal should have been accepted and filed. The applicant had an unqualified right to file it before the appeal was deemed abandoned.
However, at 4.42 pm, the appeal registrar responded by email informing the applicant that the Application in an Appeal and the supporting affidavit were not accepted for filing. The applicant remonstrated with the decision in another email at 4.59 pm but, by another reply sent at 5.51 pm, the appeal registrar explained the rejection of the application and supporting affidavit for these reasons:
The documents submitted for filing by email…at 3:32 pm were rejected for filing.
There was no reasonable prospect of an extension of time being granted before the expiry of the time defined in the Rules for filing the draft index to the appeal book.
The Application in an Appeal which the applicant sought to file sought several different forms of relief but, principally, an extension of time until 31 January 2024 within which to file the appeal book index.
The point the appeal registrar attempted to make was that the time for filing the appeal book index expired at 4.30 pm on 1 December 2023. The application to extend time to file the appeal book index, filed barely an hour before the time expired, could not be served, heard and determined within that time and so it was futile to accept the application. Once the appeal was deemed abandoned at 4.30 pm, due to no appeal book index having been filed, there was no longer a pending appeal within which to file any interlocutory application for an extension of time. The only option available to the applicant was an application to re-instate the appeal.
On 5 December 2023, the applicant filed an Application in an Appeal seeking various forms of relief but, in essence, the re-instatement of the appeal.
On 14 December 2023, the respondent filed a Response to an Application in an Appeal, by which she opposed the re-instatement of the appeal, but in the alternative, security for her costs of the appeal and an extension of time within which she may file a cross appeal or Notice of Contention.
THE APPLICATION AND EVIDENCE
By his application, the applicant seeks this relief (in summary):
(a)an urgent hearing of the application (Order 1);
(b)acceptance of the Amended Notice of Appeal, the Application in an Appeal, and the supporting affidavit sent to the appeal registrar at 3.31 pm on 1 December 2023 for filing (part of Order 2);
(c)the contemporaneous hearing of the Application in an Appeal sent to the appeal registrar on 1 December 2023 with this application (part of Order 2);
(d)declaration that the applicant in fact complied with r 13.14(2) of the Rules (Order 3);
(e)declaration that the appeal registrar erred at law by rejecting the documents for filing on 1 December 2023 (Order 4);
(f)an extension of time until 31 January 2024 within which to file the appeal book index (Order 5);
(g)re-instatement of the appeal (Order 6);
(h)costs certificates for the parties (Order 7); and
(i)such further order as the Court sees fit (Order 8).
The applicant’s solicitor’s affidavit, filed on 5 December 2023, was read in support of the application.
The applicant also relied upon written submissions filed on 14 December 2023, which were supplemented orally.
Proposed Order 1
The applicant’s request for the application to be heard urgently was effectively granted. It was listed for hearing promptly.
Proposed Order 2
The documents sent to the appeal registrar for filing before 4.30 pm on 1 December 2023 should have been, and will now be, accepted for filing.
The applicant had the right to file the Amended Notice of Appeal (r 13.10(1)).
The applicant also had the right to file the Application in an Appeal prior to the appeal being deemed abandoned. However, the applicant is mistaken to assume that the acceptance and filing of that Application, wherein he sought relief by an extension of time within which to file the draft appeal book index, would have then or would now suspend the progression of the time period within which the draft appeal book index had to be filed until the application for the extension of time was heard and determined. It was the applicant’s problem that he left the Court with insufficient time within which to list, hear and determine his application for an extension of time before the appeal was deemed abandoned.
The appeal was deemed abandoned by operation of r 13.14(2)(a)(i) of the Rules at 4.30 pm on 1 December 2023. The discretionary power to extend the time within which the applicant had to file the draft appeal book index (r 13.14(2)(b)) could arguably not have been exercised after 4.30 pm on 1 December 2023 because, by then, the appeal was deemed abandoned and appellate jurisdiction was exhausted. The applicant contended jurisdiction still existed to extend the time nunc pro tunc after the event (Gordon v Tolcher (2006) 231 CLR 334), but the point need not be resolved because the deemed abandonment of the appeal will be overcome by the grant of the application to re-instate it (canvassed in respect of proposed Order 6 below).
The re-instatement of the appeal means the second aspect of proposed Order 2 must be considered – the determination of the Application in an Appeal which is now accepted as being filed on 1 December 2023.
In that Application, the applicant sought these orders:
1.Pursuant to rule 13.14(2)(b) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (the Rules), the time for filing the draft index to the appeal book be extended to 31 January 2024.
2.The operation of paragraphs [1] – [16] of the Orders made 6 October 2023 in proceeding MLC8587 of 2015, be and are hereby stayed pending the determination of the Amended Notice of Appeal filed by [the Applicant] in Appeal NAA305 of 2023, on 1 December 2023 (the Notice of Appeal).
3.Pursuant to r 1.06 of the Rules, the hearing of the Notice of Appeal be and is hereby expedited with such priority as may be accommodated by the Full Court of the Federal Circuit and Family Court of Australia (Division 1).
4.Further, and in the alternative if it be required, pursuant to r 1.31 of the Rules, this Honourable Court dispense with the requirements of r 13.12(3)(b) of the Rules, to cause the urgent hearing of the relief sought in paragraphs 1, 2 and 3 of this Application to be heard and determined pursuant to Part 13.7 of the Rules pursuant to and in accordance with s 32(3)(c) of the Federal Circuit Court and Family Court of Australia Act 2021 in an Appeal to the Full Court of the Federal Circuit and Family Court of Australia (Division 1).
5.Pursuant to s 117(2) of the Family Law Act 1975 (Cth), and r 13.54 of the Rules, the Respondent pay the Applicant’s costs of an incidental to this Application in Appeal NAA305 of 2023.
(As per the original)
The applicant’s solicitor’s affidavit, affirmed on 1 December 2023, is read in support of the application for those orders.
The application to extend the time for filing the draft appeal book index is extended to 31 January 2024, as sought. An extension of time is not unreasonable in light of the length of the trial and the volume of documents adduced in evidence. Some care should be taken in the selection of documents which are placed before the Full Court in the appeal book. The appeal book should not be an indiscriminate compilation of every document filed in the original proceedings. With the intervening Christmas period and the closure of legal offices, extending the time until the end of January 2024 is reasonable.
However, the grant of the extension application, which inevitably delays the progress of the appeal, is plainly inconsistent with the allied application for an expedited hearing of the appeal, which application is refused. In the ordinary course of events, the appeal will likely be listed for hearing by March/April 2024. The applicant did not seek greater expedition than that.
The applicant next seeks the stay of Orders 1–16 inclusive, pending determination of the appeal. Such a stay application should usually be made to the primary judge (r 13.12(3)(b)). Apparently, a stay application was filed in the original proceedings on 6 November 2023 but, by the time it was heard on 8 December 2023, the appeal was deemed abandoned and so the stay application was dismissed. Significantly, it was dismissed on jurisdictional grounds, not because of lack of merit. There is now insufficient time to re-apply for the stay at first instance before the orders take effect and so the applicant seeks the stay by the exercise of appellate jurisdiction (s 38(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)), the existence of which jurisdiction the respondent conceded.
Relevantly, the appealed orders require: the applicant to transfer an unencumbered property to the respondent by early January 2024 (Orders 1 and 13); the applicant to pay $1,240,231 to the applicant (Order 3); the applicant to facilitate the respondent’s liquidation of two corporations (Orders 7 and 8); and the applicant’s payment of $6,250 in costs to the respondent (Order 10). In his submissions, the applicant referred only to the need to stay the orders concerning the transfer of the encumbered property and the payment of $1,240,231, so it is only necessary to consider the stay of Orders 1, 3 and 13. When pressed, he conceded that was so.
The discretion to stay the operation of appealed orders should only be exercised where circumstances exist to justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal. Such circumstances justifying a stay will exist where it is necessary to prevent the appeal from being rendered nugatory or for whatever other reason there is a real risk it will not be possible for a successful appellant to be restored substantially to his or her former position if the judgment against him or her is executed (Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 222–223). The Court should also consider the prospects of the appeal and where the balance of convenience lies (see Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 at 685).
In respect of the property, it is contended the wife may sell or encumber it if she acquires its sole proprietorship in early January 2024, which would preclude the applicant from recovering the property in specie if the appeal is successful. The wife did not eventually resist the stay of Order 1(b), requiring the transfer of the property to her. She only maintained her resistance to the stay of Order 1(a), requiring the applicant to discharge the encumbrance.
The respondent has the continuing present benefit of exclusive occupation of the property (Order 6(a)) and so deferring the transfer of the property to her until after the appeal is heard within the next few months causes her no tangible prejudice. However, the mortgagee has previously made threats to foreclose the mortgage, placing her continued occupation of the property at risk. The applicant’s discharge of the mortgage, as required by Order 1(a) will preserve the respondent’s position without undue prejudice to the applicant as, by the stay of Order 1(b), he will retain legal proprietorship of the property while the appeal is heard. The applicant’s discharge of the mortgage, which supposedly comprises a present liability of about $440,000 will be facilitated by the applicant’s relief from having to pay other money to the respondent pursuant to Order 3. Orders 1(b) and 13 should be stayed pending the appeal.
In respect of the payment of $1,240,231 (Order 3), it is contended that such funds will be used by the respondent to defray her legal costs of nearly $1.3 million owed to her lawyers and so, if the appeal succeeds, such money could not be recovered from the respondent’s lawyers and would be lost from the pool of property available for division between the parties on any re‑hearing. The respondent and her lawyers agreed to submit to an order that the sum of money would be held in trust upon undertakings not to disburse it pending finalisation of the appeal, but if the money is to be paid and parked in the possession of the respondent’s lawyers it can just as easily be retained in the husband’s possession. Considerable prejudice would be incurred in having to raise and pay $1,240,231. Order 3 will be stayed until the appeal is determined.
There could be no principled basis upon which the respondent could be fixed with liability for the applicant’s costs in respect of the Application in an Appeal, which is now accepted as being filed on 1 December 2023. No submission was made to the contrary.
Proposed Orders 3 and 4
No point is served by the grant of the injunctions sought by the applicant. He sought to review the registrar’s decision made on 1 December 2023, as was his right. The review process entails de novo consideration of the issue. The question of whether or not the appeal registrar fell into error is entirely otiose.
Proposed Order 5
This order is unnecessary as it duplicates an order sought within the Application in an Appeal now accepted as being filed on 1 December 2023, which has already been granted.
Proposed Order 6
The principles which govern applications to re-instate appeals are not in doubt. In Allan & Ors & Allan & Ors (2014) FLC 93-606, the Full Court said:
32.The discretion to re-instate an abandoned appeal is not exercised in an unstructured or unprincipled way, but rather in accordance with the established legal principles set out within Gallo v Dawson (1990) 93 ALR 479 at 480 (see Haykal & Krawiec & Anor [2014] FamCAFC 110 at [31], [40]–[46]; Bemert & Swallow (2010) FLC 93–441 at [128]–[131]). As was made plain in Gallo v Dawson, the discretion may only be exercised in favour of the applicant upon proof that strict compliance with the Rules will “work an injustice upon the applicant”.
In accordance with those principles, the application to re-instate the appeal is granted. The appeal is re-instated in the form of the Amended Notice of Appeal now accepted as being filed on 1 December 2023.
The applicant moved with commendable haste to re-instate the appeal after its deemed abandonment. No prejudice could accrue to the respondent by the appeal’s re-instatement after such a short interlude of abandonment. Her submissions about the weakness of the appeal are not so obviously correct as to militate against the appeal’s re-instatement. The asserted demerit of the appeal is not so important a consideration when the appeal was lodged within time and the default, as is the case here, concerns the failure to meet a time limit within the appeal, as distinct from when an application is made to extend time within which to bring the appeal in the first place (Jackamarra v Krakouer (1998) 195 CLR 516 at [4], [7], [9], [33], [66] and [73]).
For clarity, the appeal will again be deemed abandoned if the applicant fails to file his draft appeal book index by 4.30 pm on 31 January 2024.
Proposed Order 7
The application for costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) is dismissed. Costs certificates may only be granted in the exercise of discretion, subject to certain conditions being met, upon the final disposition of the appeal. Costs certificates are not available in respect of interlocutory appellate skirmishes.
Proposed Order 8
No other orders are appropriate.
THE RESPONSE AND EVIDENCE
By her Response, the respondent seeks this relief (in summary):
(a)dismissal of the Application in an Appeal filed on 5 December 2023 (Order 1);
(b)in the alternative, dismissal of the Application in an Appeal deemed to be filed on 1 December 2023 (Orders 2 and 3.5);
(c)in the alternative, an order that the applicant pay her $600,000 by way of security for her costs of the appeal, in default of which the appeal is dismissed (Orders 3.1 and 3.2);
(d)the applicant’s restraint from filing any further amended appeal without the leave of the Court (Order 3.3);
(e)extension of time within which she may file either a cross appeal or Notice of Contention (Order 3.4);
(f)her costs of the interlocutory dispute (Order 4).
In support of her application the respondent relied upon affidavits filed by her and her solicitor on 14 December 2023.
The respondent also relied upon written submissions filed on 14 December 2023, which were supplemented orally.
Proposed Order 1
This order is dismissed for reasons already explained.
Proposed orders 2 and 3.5
These orders are dismissed for reasons already explained.
Proposed Orders 3.1 and 3.2
These orders comprise the respondent’s claim for security for costs, default in payment of which causes dismissal of the appeal.
The principles which govern the grant of security for costs are well known. In Frazier & Valdez (2016) FLC 93-729, the Full Court said this:
12.Whilst the exercise of the discretion depends upon the relevant circumstances of each case, in Luadaka & Luadaka (1998) FLC 92-830 the Full Court of this Court, after extensive review and reference to authority (and a leading text on costs), identified (at [62]) a (non-exhaustive) list of factors, additional to or in the context of those identified in s 117(2A) of the Act, which may be relevant to an application for security for costs. In summary, transposing that list to the context of an appeal, those factors are:
(a)The means of an appellant to satisfy an order for costs if he or she is unsuccessful;
(b)The financial circumstances of both parties: impecuniosity of the appellant is not alone sufficient to justify an order for costs but nor does it prevent an order being made if there are other grounds which justify an order. As regards the respondent, an order is not confined to cases where the respondent (the applicant for security) does not have the means to meet his or her costs — in appropriate circumstances an order may be made even if the applicant for security has the means to meet his or her costs;
(c)The prospects of success in the proceedings — ordinarily the Court will not undertake a detailed assessment of the likelihood of the appellant’s success unless it can be demonstrated that there is a high probability of success or failure;
(d)Whether the appeal is bona fide, whether it is genuine and not trivial, vexatious or a sham;
(e)Whether an order for costs would be oppressive or stifle the litigation: that prospect does not require a refusal of the application but is often a significant matter;
(f)Whether or not the litigation involves a matter of public importance (if so, this will militate against the making of an order);
(g)Whether or not there has been delay in bringing the application for security and consequent prejudice to the respondent (appellant);
(h)Other relevant matters may include any difficulties of enforcing an order for costs and the amount of costs to be incurred.
Those considerations now find themselves embedded in the Rules (r 12.02(2)).
The respondent’s claim for security was principally predicated upon what she contended to be the parties’ disparate financial circumstances and the unlikelihood of her being able to subsequently enforce any costs order against the applicant.
An award of costs is the exception (s 117(2))), not the general rule (s 117(1)). The advance payment of costs by way of security for an anticipated eventual award of costs is even more unusual. However, on their face, the amended grounds of appeal do not appear to be strongly convincing. If the appeal proves to be wholly unsuccessful and an award of costs is made in the respondent’s favour, as she urges will be the outcome, she will likely experience difficulty in enforcing the costs order against the residual 40 per cent of property the applicant is due to retain under the appealed orders. On the primary judge’s calculations, the property to be retained by the husband should be worth $2,760,336 (at [464]), but the bulk of such equity exists in the real property due to be transferred to the respondent and an American corporation the husband controls. Under the appealed orders (Orders 7(b) and 8(c)), the respondent is due to obtain the assets of the American corporation, but executing those orders in Country FF may well prove so expensive and time consuming as to be futile. There is good reason to anticipate any costs order made in the respondent’s favour would go unsatisfied unless security is granted.
Otherwise, the respondent submits her entitlement to security is founded upon:
(a)the applicant’s conduct in other proceedings in the County Court of Victoria;
(b)the applicant’s conduct in other proceedings in the Supreme Court of Victoria;
(c)the applicant’s professed intention to ask the primary judge to defer any decision on costs at first instance until after this appeal is concluded;
(d)the applicant’s conduct in the proceedings below, by various breaches of orders, prior to the trial commencing before the primary judge in March 2018; and
(e)the applicant’s conduct of the trial before the primary judge, about which her Honour commented unfavourably.
The pejorative submissions made about the applicant’s conduct of the proceedings at first instance and in other State jurisdictions are bare criticism and, logically at least, have little or no bearing upon the prospect of the respondent successfully recovering her costs of the appeal from the applicant. I reject the submissions as being unhelpful.
Given the premise for an order for the payment of security, the question of the appropriate sum to be paid then arises. The respondent’s giddy estimate of her costs of the appeal being $600,000 defies rational explanation and is preposterous. Making an order for the applicant’s payment of any sum remotely approaching that amount by way of security for costs would be tantamount to the Court’s endorsement of and complicity in the lawyers’ practice of rank avarice. The practice should be condemned, not encouraged.
Despite the expanse of the trial, the amended appeal comprises 16 relatively confined grounds, being: bias (Ground 1); denial of procedural fairness (Grounds 14–16); and mistaken findings (Grounds 2–13). The respondent’s counsel addressed each of the grounds individually within the written submissions filed on 14 December 2023 for the purpose of this interlocutory hearing, so why it would cost $600,000 to meet the appeal is anyone’s guess, particularly when the respondent’s counsel repeatedly submitted to me “this is a very simple case”. On the other hand, the appeal book is likely to be expansive and the Summary of Argument will probably be intricate. The sum of $100,000 recommends itself.
The sum need not be paid until the draft appeal book index is filed on 31 January 2024 because, failure to do so shall mean the appeal is again abandoned. If the security is not paid to the respondent’s lawyers by 4.30 pm on 1 February 2024, the appeal stands dismissed by self-executing order.
Proposed Order 3.3
No sensible submission was advanced for why an injunction should be made restraining the applicant from again amending his appeal. Under the Rules, the applicant has an unfettered right to amend the appeal as many times as he likes up until the time at which his Summary of Argument must be filed (r 13.10(1)). This order is refused.
Proposed Order 3.4
The respondent had a month to file a cross appeal or Notice of Contention before the applicant’s appeal was deemed abandoned. None was filed.
The respondent submitted that re-instatement of the appeal in the form comprising the Amended Notice of Appeal deemed filed on 1 December 2023 will now necessitate a cross appeal. The respondent requested 14 days within which to file the cross appeal but, given the imminent holiday period, she will be given leave to do so up until Friday 19 January 2024.
Proposed Order 4
It is difficult to imagine how the respondent could press an application for costs, given the limited success of the applications she prosecuted. Nonetheless, I will afford the chance to make submissions if this application is maintained.
I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 22 December 2023
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