Gough & Amado (No. 2)

[2007] FamCA 453

FAMILY COURT OF AUSTRALIA

GOUGH & AMADO (NO. 2) [2007] FamCA 453

FAMILY LAW - PROPERTY - ORDERS - Stay of proceedings in relation to Orders made on 4 May 2007

FAMILY LAW - PROPERTY - COSTS - Application without merit - Lack of evidence of a full and frank financial disclosure

Family Law Act 1975 (Cth)

Gallo and Dawson (1993) FLR 479 at 481

APPLICANT:	Ms Gough
RESPONDENT:	Mr Amado
FILE NUMBER:	SYF	5594	of	2003
DATE DELIVERED:	11 May 2007
PLACE DELIVERED:	Sydney
JUDGMENT OF:	The Hon. Justice Rose
HEARING DATE:	11 May 2007

REPRESENTATION

APPLICANT:	In person
COUNSEL FOR THE RESPONDENT	Mr C Cook
SOLICITOR FOR THE RESPONDENT:	Clinch Neville Long

Orders

1. That the Application in a Case of the applicant filed 9 May 2007 is dismissed.

2. That the applicant pay the respondent’s costs of and incidental to her Application in a Case filed 9 May 2007 as assessed and agreed upon or failing agreement as taxed.

NOTATIONS:

A.The letter dated 10 May 2007 being Exhibit A, copies of which have been provided to both the applicant and to counsel for the respondent.  Counsel for the respondent has assured me that his instructing solicitors will obtain further instructions in relation to its content and correspond directly to the applicant in relation to those instructions as clearly if there are no outstanding fees for audit and taxation services then they should not be claimed as a deduction pursuant to the Orders made 4 May 2007.

B.The transcripts for the hearings of 9 and 11 May 2007 will be obtained by the Court and placed on the court file.

FAMILY COURT OF AUSTRALIA AT SYDNEY

File number:  SYF5594 of 2003

MS GOUGH

Applicant

And

MR AMADO

Respondent

REASONS FOR JUDGMENT

Application for stay of orders made 4 may 2007

1. On 4 May 2007, I made orders for property settlement (“the orders”).

2. On 9 May 2007, upon the application of the applicant I granted a stay of proceedings in respect of Order 2 of the orders to expire at 5.00pm, 3 June 2007.

3. By her Application in a Case filed 9 May 2007 the applicant seeks a stay of proceedings in respect of all of the orders made 4 May 2007 until determination of the appeal.

4. Given that a stay of proceedings in relation to Order 2 has been made on terms, and having regard to the nature of Orders 6 and 7, it is apparent that the stay of proceedings now sought is in reality in respect of Orders 1, 3, 4 and 5.

5. In support of the applicant’s application for a stay of proceedings, she has sworn an Affidavit filed 9 May 2007.  That affidavit does not provide any evidence in support of her application.

6. I have also read the Affidavit of the applicant sworn 7 May 2007.  The incorrect date was given as 7 April 2007, as it annexes the applicant’s Notice of Appeal filed 7 May 2007 to which reference has been made by her in her affidavit filed yesterday.

7. The applicant has stressed to me that she is unrepresented.  That is correct.

8. The implication of being unrepresented is that the applicant lacks knowledge that a lawyer would have.  That is accepted.

9. However, at all stages of the hearing before me today (as well as during the trial) the applicant was informed that if she had any questions that she wished to ask in relation to questions of law or procedure then she should feel free to do so.  That happened on a number of occasions as it did today.

10. I say no more other than to rely upon the observation of McHugh J in the High Court in Gallo and Dawson[1].

    [1] Gallo and Dawson (1993) FLR 479 at 481

11. I have determined to dismiss the applicant’s application for the following reasons.

12. The notice of appeal does not disclose proper grounds of appeal, save and except for the contention that Exhibit 15 in the trial, being the written outline of submissions relied upon by the respondent in the words of the applicant “entered into evidence post-trial the respondent viewed 7 April 2007 in post determination”.

13. I have previously noted in the orders made 9 May 2007 that the issues so raised are without foundation.

14. Exhibit 15 was filed in court prior to the conclusion of the hearing, namely on 2 February 2007 and the applicant responded directly to it during the course of her oral submissions.  Consequently, that ground of appeal is nothing other than a blatant misrepresentation.

15. It follows that the grounds of appeal do not raise an issue of substance for determination and are without merit.

16. Whether there is a real risk that a successful appeal would be rendered nugatory absent a stay of proceedings, in my view that matter does not arise.  That issue which is frequently relevant for consideration on the hearing of an application for a stay of proceedings is based upon the fundamental premise that the notice of appeal relied upon by an applicant for a stay discloses proper grounds of appeal which in turn have merit.

17. I have already concluded that the notice of appeal does not satisfy those matters.

18. In addition, I note that the applicant did not seek a review of the orders for the sale of the subject property at C made by Loughnan JR on 12 December 2005.  I appreciate that an issue at the trial was whether or not the applicant in this application, being the respondent at the trial, should receive a greater percentage of the proceeds of sale of the C property than was ultimately awarded to her.

19. However, for that to be an issue for agitation must depend on whether the notice of appeal reveals proper grounds of appeal which in turn have substance.  I need not reiterate my conclusions in that regard.

20. Indeed, it is open to the respondent to seek summary dismissal of the pending appeal for that reason.  However, that is solely a matter for the Full Court.

Oral application for costs sought by the respondent

1. Costs are sought by the respondent to this application.

2. The application is opposed.

3. Initially, the order sought was for approximately $7,100.00.  It was apparent from counsel’s submissions, which he implicitly acknowledged, that the amount was on an indemnity basis.  However, indemnity costs have not been sought.

4. Consequently, if an order is made then the appropriate correspondence will be sent by the respondent’s solicitor to the applicant and if there is no agreement reached, then the costs can be taxed.

5. In terms of the merit of the oral application for costs, I take into account and give weight to the following.

6. There is a circumstance that has been established that an order may possibly be made, namely that the application for a stay of proceedings was dismissed.

7. That the application so dismissed was found to be without merit.

8. Further, I have made findings in respect of the financial resources of each of the parties set out in the Reasons for Judgment of 4 May 2007 and I give weight to those findings.

9. In addition to those findings, I also made a finding that the applicant in the proceedings before me, being the respondent at the trial, had failed to provide a full and frank financial disclosure.  In that regard, a number of findings were made to support that principal finding.

10. The applicant submits to me today that she does not have the financial resources to meet an order for costs.  However, I do not have evidence that the applicant has now made full and frank financial disclosure compared to the lack thereof in the judgment.

11. As I explained to the applicant, after allowing her the adjournment she sought for approximately ten minutes to compose herself, that whilst she had every right to make an application for a stay of proceedings there is a potential disadvantage in that if the application is dismissed and found to be without merit then there may be an order for costs made against her.  Otherwise, it would mean that litigation can be conducted on the basis that an application can be made without merit and the person who takes up court time and causes the other party to incur expense should not have to bear an order for costs.

12. That is not the law in this country and has not been since time immemorial.

13. I will make the order as sought.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose

Associate: 

Dated:  21 May 2007

IT IS NOTED that this judgment for all publication and reporting purposes be referred to as GOUGH & AMADO