GJL & DBL

[2006] FamCA 404

[2006] FamCA 404

FAMILY LAW ACT 1975

IN THE FULL COURT      
OF THE FAMILY COURT OF AUSTRALIA  Appeal No NA1 of 2006
AT BRISBANE  File No BRF4692 of 1993

BETWEEN:

GJL
Applicant Husband
- and -

DBL
Respondent Wife

REASONS FOR JUDGMENT

CORAM:  KAY, MAY & BOLAND JJ
DATE OF HEARING:                 8 May 2006
DATE OF JUDGMENT:             8 May 2006

APPEARANCES:  Mr Twohill, (Twohill Lawyers, PO Box 4896, Bundall Qld 4217), appeared on behalf of the Applicant Husband.

The Respondent Wife in person.

GJL & DBL
NA1 of 2006
CORAM:  KAY, MAY & BOLAND JJ
DATE OF HEARING:         8 May 2006
DATE OF JUDGMENT:     8 May 2006

Catchwords: SECURITY OF COSTS – appeal from dismissal of s79A application seeking to overturn property orders made in 1994 – Appellant impecunious – Appeal unlikely to be successful based on history of proceedings including length of time since original hearing and previous unsuccessful application – Security for costs ordered in the sum of $5,000.

1. KAY J:  This is an application for security of costs brought by the respondent to an appeal.  The appellant is the former wife of the respondent and the appeal is against orders that were made by Carmody J dismissing an application she had brought to set aside some property orders. 

1. The relevant background is that in April 1994 Jordan JR, as he then was, made orders for the alteration of property interests between the parties giving the wife approximately a little under half of the proceeds of the parties' assets which the Judicial Registrar found to be worth $172,000.  Some two years later, in October 1996, the wife filed an application to "review" the 1994 property orders and orders were made by Warnick J in January 1997 that she provide security for costs in relation to that application.  On an appeal against the order for security for costs, the order was set aside and the matter remitted for rehearing.  Ultimately Hilton J ordered the wife to pay $10,000 by way of security for costs otherwise the appeal would lapse.  The security was not provided and the application lapsed. 

1. The wife brought some further proceedings claiming damages against her solicitors in the District Court in Queensland.  She was unsuccessful in those proceedings.  She brought proceedings on appeal relating to that dismissal.  There were security for costs orders made which she did not comply with and the appeal lapsed. 

1. The wife brought another application in this Court in 2003 attempting to challenge the orders of Jordan J. It was said to be an application pursuant to s 79A of the Family Law Act.  That matter came on for hearing before Carmody J and his Honour published a lengthy judgment in which his Honour dismissed the application but made no order for costs.

1. Undaunted by that exercise the wife filed yet another application on 19 July 2005 seeking to re-open effectively the s 79A application that had already been dealt with by Carmody J, or add some further evidence so that she could have yet another hearing of that application. It was that matter that came on for trial before Carmody J and seems to have been dealt with by a summary dismissal. After submissions were made from each of the parties Carmody J delivered a lengthy reserved judgment of some 115 paragraphs on 8 December 2005.

1. The wife has filed a Notice of Appeal in relation to the second of Carmody J's orders dismissing her s 79A application and it is that Notice of Appeal that has attracted this application for security for costs.

1. The grounds upon which the appeal is sought to be argued are

(1)      there was a denial of natural justice;

(2)      the trial Judge was biased;

(3)      the trial Judge's reasons discriminate against the wife;

(4)       there was a miscarriage of justice because the original order, it asserts, was inappropriately made;

(5)       the trial Judge failed to address the matters that she challenges, the original orders that were made in 1994.

1. We have carefully read the material of both sides, including the reasons for judgment of the trial Judge.  Applications for security for costs raise conflicting claims of right.  On the one hand they may have the effect of stifling litigation by not allowing a impecunious litigant to go ahead on what might be a perfectly valid claim, the applicant having a right of appeal under the legislation, but on the other hand they expose a respondent to an unnecessary appeal, or an unsuccessful appeal, or the risk of incurring costs in being heard to argue why the appeal ought not be allowed.  It is a balancing act.  There are very many factors to be taken into account in the exercise of that balance set out  in the decision of the Full Court in Luadaka (1998) FLC 92-830.

1. In addition, however, there is the decision of the Full Court in Jones (2001) FLC 93-080 which distinguishes between the principles to be applied at first instance on the hearing of an application for security for costs and those to be heard in an appellate process. In an appeal, the Court said in Jones :

“21.     It has long been recognised that, as a general rule and in the exercise of an unfettered discretion, mere impecuniosity of a litigant who is an actual person, will not of itself be a basis for ordering that person to provide security.  There is, however, an exception to that general rule, namely in the case of appeals. ...

22.      The fact that the wife would be unable to pay the costs awarded against her, if her appeal was dismissed, is, in our view, a significant factor to take into account in considering whether to exercise the discretion to order security in favour of the husband, but it is not the only or deciding factor.

23.      If an appeal appears to have little merit, a court may be more disposed to make an order for security for costs. …”

1. I should say that it is the wife's own case that she is impecunious and is unlikely to be able to meet an order for costs if one is ever ordered.  She makes a rather unique submission that the husband does not really need to be represented if her case is so weak at the hearing of the appeal.  Indeed she says he has managed to get a long way in other appeals without representation and asks why he should be entitled to have representation now. 

1. It seems to me that there is great merit in the submission that there is a serious likelihood that the husband will not be able to be recompensed in the event that he is successful in the appeal.  It is not for me to determine today the outcome of the appeal but on the face of it there appears to be strong support for the proposition that it is most unlikely to be a successful appeal given the history that I have already outlined of the proceedings, namely the length of time between the original hearing and the matter that led to this appeal and the fact that there has been one hearing on the merits before this hearing previously held in 2004, as well as an opportunity foregone in 1997 to have the matter dealt with on appeal.

1. For those reasons it would appear to me that on balance it is appropriate that an order be made.  I would make an order in the form set out in the decision of Jones.  I would not make an order in the sum of $15,000 as sought by the applicant before us but would make an order in the sum of $5000 which is a more reasonable amount for the respondent to the appeal to expect to recover on a party/party basis.  I would make an order that unless the wife within one month of the date of this order provide security for the husband's costs of the appeal in the sum of $5000 in a form acceptable to the Registry Manager at the Brisbane Registry of the Court, the appeal filed on 4 January 2006 be dismissed. 

1. MAY J:  I agree with the reasons of the learned presiding Judge and would make the same orders.

1. BOLAND J:  I also agree with the reasons for judgment and the proposed orders of the learned presiding Judge and have nothing further to add. 

1. KAY J:  We would further order that the wife pay the husband's costs of and incidental to this application which we assess in the sum of $1500. 

I certify that the 15 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.

Associate