Golding and Wilmer (No.2)
[2017] FCCA 2008
•16 August 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GOLDING & WILMER (No.2) | [2017] FCCA 2008 |
| Catchwords: FAMILY LAW – Application for a stay of proceedings pending the resolution of an appeal from an interlocutory order – finding of fact – exercise of discretion. |
| Aldrige & Keaton [2009] FamCAFC 106 Dalton & Dalton [2017] FamCAFC 78 Gronow & Gronow (1979) 144 CLR 513 House v R (1936) 55 CLR 499 Medlow & Medlow [2016] FamCAFC 34 Rugolino & Howard [2010] VSC 590 |
| Applicant: | MR GOLDING |
| Respondent: | MS WILMER |
| File Number: | MLC 11080 of 2015 |
| Judgment of: | Judge McNab |
| Hearing date: | 16 August 2017 |
| Date of Last Submission: | 16 August 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 16 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Tatarka |
| Solicitors for the Applicant: | Berry Family Law |
| Counsel for the Respondent: | Mr Matta |
| Solicitors for the Respondent: | Mitchell Family Law |
ORDERS
The application to stay the proceeding pending hearing and finalisation of the appeal be dismissed.
By 23 August 2017 the Wife provide the Husband with:
(a)Current valuation of her superannuation entitlements;
(b)Financial Statements for [Business A] for the latest financial year available;
(c)Financial Statements for [Business B] for the latest financial year available.
Not later than 14 Days after the provision of the material referred to in paragraph 2 of this Order, the Husband file and serve any responding affidavit material from his accountant.
The Husband and the Wife do all acts and things necessary to ensure that their accountants attend a conference within 21 days after the Husband files his responding affidavit material as required by paragraph 3 of this Order.
At the conference the parties’ accountants must:
(a)Identify the issues on which they agree or disagree;
(b)If practicable reach agreement on any outstanding issue;
(c)Identify the reason for disagreement on any issue;
(d)Identify what action (if any) may be taken to resolve any outstanding issues;
(e)Prepare a joint statement specifying the matters mentioned in sub-paragraphs (a)-(d) and deliver a copy to each party.
The joint statement referred to in sub-paragraph 5(e) may be tendered as evidence of matters agreed on and to identify the issues on which evidence will be called.
Should the parties fail to agree as to the value of the property at [Property A] by 45 days prior to Trial they appoint Mr H to prepare an updated valuation and the cost of such valuation be shared equally between the parties.
Otherwise orders 6, 7 and 8 of the Orders made on 14 November 2016 be discharged.
The Court notes that the estimate of the trial fixed for 23 October 2017 has been amended to 3-5 days.
The Wife pay the Husband’s costs of:
(a)Her response to his application dated 21 July 2017.
(b)The Wife’s application for a stay pending appeal:
fixed at $2756.
IT IS NOTED that publication of this judgment under the pseudonym Golding & Wilmer (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 11080 of 2015
| MR GOLDING |
Applicant
And
| MS WILMER |
Respondent
REASONS FOR JUDGMENT
By an application in a case filed on 9 August 2017, the respondent wife seeks an order that the proceeding be stayed pending the outcome of the appeal filed on 9 August 2017 against an Order made on 1 August 2017. The application for a stay was heard on 10 August 2017.
The appeal is from an interlocutory decision to refuse an application that Berry Family Law cease acting for the husband on the grounds that there is a real risk that the firm has come into the possession of confidential information that is reposed in Ms Bernadette Johnston, who previously acted for the wife and Ms E, who was an administrative assistant to Ms Johnston prior to those people joining the firm Berry Family Law on about 12 May 2017.
The grounds of appeal:
Ground 1:
The Primary Judge erred in fact and law by finding, as he did:
(a) “that there is clear and convincing evidence that effective measures exist to protect against any real risk of disclosure”; and
(b) that there are “sufficient safeguards to prevent a real risk that husband will have access to the wife’s confidential information”,
in circumstances where such findings were not open on the evidence.
Ground 2:
The Primary Judge erred in applying any, or insufficient, weight to the lack of any evidence of the systems put in place that gave effect to, or were in support of, the purported information barrier established by the Solicitors for the Husband.
Ground 3:
The Primary Judge erred by applying excessive weight on the undertakings provided by the Solicitors for the Husband.
It was agreed by counsel that the test to be applied in applications for leave to appeal interlocutory orders is set out at paragraph [57] of Medlow & Medlow [2016] FamCAFC 34:
[57] We are of the opinion that, subject to the caveat just discussed, the test to be applied in applications for leave to appeal under s 94AA of the Act is whether, in all of the circumstances, the decision is attended by sufficient doubt to warrant it being reconsidered by the Full Court and whether substantial injustice would result if leave were refused, supposing the decision to be wrong.
Considerations to be applied in applications for a stay were considered and set out at paragraphs [17] and [18] of the decision of the Full Court in Aldridge & Keaton [2009] FamCAFC 106:
[17] …There are well established principles on the limits on interference by an appellate court with such a judgment (see House v R (1936) 55 CLR 499; Gronow v Gronow (1979) 144 CLR 513; (1979) FLC 90–716).
[18] The principles to be applied in determining an application for a stay of orders both in the general law and in respect of parenting proceedings are also well known (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Ltd [No (1986) 160 CLR 220 at 222;Alexander v Cambridge Credit Corporation (1985) 2 NSW LR 685; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Clemett & Clemett (1981) FLC 91-013;JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter include the following: (omitting considerations relevant to children’s matters)
* the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any "special" or "exceptional" circumstances;
* a person who has obtained a judgment is entitled to the benefit of that judgment;
* a person who has obtained a judgment is entitled to presume the judgment is correct;
* the mere filing of an appeal is insufficient to grant a stay;
* the bona fides of the applicant;
* a stay may be granted on terms that are fair to all parties — this may involve a court weighing the balance of convenience and the competing rights of the parties;
* a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted — this will be a substantial factor in determining whether it will be appropriate to grant a stay;
* some preliminary assessment of the strength of the proposed appeal — whether the appellant has an arguable case;
…
* the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and
…
In making a preliminary assessment of the merits of the appeal, that is, the strength of the proposed appeal, one has to bear in mind that this is an appeal from a discretionary judgment, and the considerations which were identified by the Full Court in Aldridge & Keaton [2009] FamCAFC 106, in particular the tests in the House v King (1936) 55 CLR 499 are to be applied.
The grounds of appeal challenge the findings of fact made by the Court, and that calls into question the proper approach of an appeal court where a challenge to findings of fact is the basis of an appeal. The position of an appeal which seeks to challenge a finding of fact or attack a finding of reasonable satisfaction based on the finding of fact was considered by Bell J in Rugolino & Howard [2010] VSC 590, where his Honour stated:
[10] These principles have been established in the decided cases, usually in the context of defining the proper role of a judge on appeal. So in Roads Corporation v Dacakis, Batt J held “the question whether there is any evidence of a particular fact is a question of law.” Therefore a finding of fact is open to challenge as “erroneous in law”, but only if “there is no probative evidence to support it”. Similarly, in S v Crimes Compensation Tribunal, Phillips JA said making a finding of fact would ordinarily give rise to an error of law only if “it is shown that the fact-finding tribunal arrived at a finding that was simply not open to it.” His Honour emphasised that the question was not whether the finding was “reasonably open”, for that implied the court on appeal could test the finding against a reasonableness standard, but whether the finding was open at all. (citations omitted)
In my view, the grounds of appeal do not and could not assert that there was no factual basis in order to make the decision appealed from. Rather, they question the reasonableness of the decision or the reasonableness of the fact-finding, and, in my view, face a real challenge before a court of appeal, for the reasons that are identified by Bell J in Rugolino & Howard [2010] VSC 590. For those reasons, there are significant challenges faced by the appellant in persuading an appeal court that the findings of fact were not open to the court at all.
At the hearing of the stay application, counsel for the wife raised issues in relation to the sufficiency of the undertakings and declarations that had been provided to the Court and submitted that this should be taken into account in assessing the strength of the appeal.
I note that the wife, by her counsel now complains about the sufficiency of the terms of the declarations and undertakings. She was given three opportunities to raise issues or make suggestions in relation to the terms of the undertakings and declarations that were provided in advance of the declarations actually being provided.
Further, in my view, the appeals court is likely to take into account the failure of the wife to indicate the type of information (as opposed to particulars of information or specifics of information, said to be confidential) which falls outside the type of information which is required to be disclosed by parties as part of the court process in financial matters. In that regard I refer to the decision of Murphy J in dissent in Dalton & Dalton [2017] FamCAFC 78. I do not believe that anything he said in relation to the nature of the process of disclosure in financial matters and the requirement to disclose the nature of the information said to be confidential are open to challenge.
I am not persuaded that the undertakings given to the Court by Berry Family Law do not provide a sufficient mechanism to protect the movement of any confidential information, and therefore I am not of the view that there is a real risk that the appeal will be rendered nugatory if a stay is not granted.
There will be substantial prejudice suffered to the husband, in my view, if the stay is granted. The proceeding has been on foot since November 2015. The matter is fixed for hearing on 23 October 2017. Submissions were put to the Court by counsel for the wife that the proceeding may, in fact, not be able to proceed on that day, because of issues raised by the husband in other courts. If there are some fundamental issues which render parts of the husband’s claim or case to be untenable or unarguable, then an application should be made in the case to dismiss those parts of his claims in advance of the hearing.
Counsel for the wife made a submission that a stay must be granted where an appeal may be rendered nugatory. No authority was cited in support of that proposition, and a cursory review of the authorities in relation to these matters indicates that that is not a correct submission. It is a matter to be taken into account, but does not impose a requirement to grant a stay. It is part of the mix of considerations that the Court must engage in. In those circumstances, I dismiss the application for a stay.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge McNab
Date: 22 August 2017
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