Gull & Gull (Stay Application)
[2009] FamCAFC 104
•19 June 2009
FAMILY COURT OF AUSTRALIA
| GULL & GULL (STAY APPLICATION) | [2009] FamCAFC 104 |
| FAMILY LAW – PROPERTY - STAY APPLICATION – PENDING SPECIAL LEAVE TO APPEAL TO HIGH COURT – Application for stay of orders of Full Court of the Family Court of Australia – Circumstances in which a stay should be granted – Whether the circumstances in this case are exceptional - Where granting a stay would cause the husband substantial prejudice FAMILY LAW - STAY APPLICATION – Dismissed FAMILY LAW - COSTS – Application unsuccessful – Respondent sought costs - Applicant pay the costs of the respondent to be assessed |
| Family Law Act 1975 (Cth) |
| Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 PetrotimorCompanhia de Petroleos SARL v Commonwealth of Australia [2003] FCAFC 82 |
| APPELLANT: | MRS GULL |
| RESPONDENT: | MR GULL |
| FILE NUMBER: | MLF | 2723 | of | 2004 |
| APPEAL NUMBER: | SA | 23 | of | 2008 |
| DATE DELIVERED: | 19 June 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Warnick, May & Boland JJ |
| HEARING DATE: | 18 June 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 March 2008 |
| LOWER COURT MNC: | [2008] FamCA 183 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Appellant appeared in person |
| SOLICITOR FOR THE RESPONDENT: | Vernon Da Gama & Associates |
Orders
The application for a stay of the orders of the Full Court made 30 April 2009 is dismissed.
The applicant pay the costs of the respondent to be assessed.
IT IS NOTED that publication of this judgment under the pseudonym Gull and Gull (Stay Application) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 23 of 2008
File Number: MLF 2723 of 2004
| MRS GULL |
Appellant
And
| MR GULL |
Respondent
REASONS FOR JUDGMENT
The wife applied that this court stay the operation and the execution of orders made by the Full Court on 30 April 2009. The orders dismissed an appeal by the wife save for slight adjustments made due to a mathematical error. The wife, we understand on 26 May 2009 filed an Application for Special Leave to Appeal to the High Court of Australia. A stay of the Full Court’s order would in effect continue the operation of Mushin J’s (the trial Judge) stay made 16 May 2008, pending the outcome of the wife’s application to the High Court.
We have the application containing the Grounds.
It is until the hearing of the special leave application that Mrs Gull seeks a stay.
The husband opposes the stay being granted.
BACKGROUND
Final property orders were made by Mushin J on 19 March 2008. The property consisted mainly of real estate in Melbourne found to have a total net value of approximately $200,000 and funds invested in India of approximately $500,000. It was ordered that both parties sign all documents necessary to cause the investment moneys to be repatriated from India to Australia, to be divided between them as provided by the orders.
The grounds of appeal from the trial Judge were discussed at length in our judgment. We would mention only, that perhaps unsurprisingly, Mrs Gull seeks to re-agitate those grounds before the High Court. The matters of which the wife made particular mention in her submissions to us in seeking a stay were as follows:
·The orders should not have required the moneys deposited in India to be returned to Australia because after the parties’ son, now 14 years, completes his education in Australia Mrs Gull intends to return to India;
·Her medical condition was not properly considered;
·The husband had failed to disclose bank accounts; and
·The court had not properly considered a life insurance policy.
In addition, Mrs Gull said that there is a case pending in the Family Division of the High Court in India. The legal representative for the husband took issue with that assertion and it can be seen in the judgment of the Full Court it was understood that although there had been proceedings instituted by Mrs Gull in India on 18 October 2005 the High Court of India ordered that all bank accounts of the parties shall not be operated by either of the parties “pending adjudication of their matrimonial dispute in the court of Australia”.
In relation to the argument about the repatriation of the moneys to Australia we would set out that part of the Full Court judgment related to this issue:
64.It is the wife’s contention both before us and the trial Judge that if funds are transferred to Australia there will be a heavy financial loss to the parties because of lost interest due to premature withdrawal and penalties. This is in addition to any loss caused by exchange rates.
65.There was no material before his Honour in this respect. For that reason, on 30 November 2007 his Honour adjourned the matter to 10 December 2007 to allow the parties to obtain further evidence and make submissions. (See T’script p.856-860) The question of the ownership and value of the moneys in India and their repatriation to Australia had always been an issue. On 10 December 2007 the wife and counsel for the husband provided the Judge with proposed orders. The discussion that followed was largely in relation to the personal items of the parties. The wife maintained her position that the property in India should remain undisturbed by Australian orders.
66.After the Judge repeated his inquiry as to what orders the wife sought in relation to the bank accounts in India it became clear that Mrs [Gull] had not obtained any further evidence in relation to the repatriation of the funds.
67.It is not correct that the wife did not have an opportunity to obtain advice and place relevant evidence before the court to resist the order as indicated by the trial Judge. The Judge made the orders as explained in his judgment after each party had the opportunity to make submissions.
APPLICABLE LEGAL PRINCIPLES
The matters to be considered in relation to whether a stay should be granted have been explained by the High Court on a number of occasions and were conveniently summarised for our purposes in the judgment of Beaumont J in PetrotimorCompanhia de Petroleos SARL v Commonwealth of Australia [2003] FCAFC 82:
[15] In Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681, where the Court below had ordered the cancellation of certain securities, Brennan J said (at 683):
“The jurisdiction to grant a stay in the present case depends on whether a stay is necessary to preserve the subject-matter of the litigation. If an application for special leave to appeal would be futile unless a stay is granted, the jurisdiction arises.”
[16] His Honour characterised a stay to preserve the litigation’s subject-matter as “an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted” (at 684).
[17] Brennan J explained (at 685):
“In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court’s discretion. In each case when the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.”
[18] In Edelsten v Ward (No 2) (1988) 63 ALJR 346, Brennan J, emphasising the “exceptional” character of the Court’s inherent jurisdiction to preserve the subject matter of litigation pending the making of a special leave application, said (at 346):
“[This jurisdiction] is one which can only be exercised in extraordinary circumstances. It is as well to emphasise that observation again lest the impression be created that, in the conduct of litigation, the orders of this Court are available to keep matters in statu quo until the litigation is finally resolved. That is not the purpose of the inherent jurisdiction. Something quite exceptional must be shown before that jurisdiction is exercised."
[19] In Commissioner of Taxation v Myer Emporium (1986) 160 CLR 220, Dawson J noted (at 222) that the High Court Rules (see now O70 r8(1)) provide that, unless otherwise ordered, an appeal does not operate as a stay. His Honour said (at 222 - 223):
"It is well established by authority that the discretion which it confers to order a stay of proceedings is only to be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal: see, eg, The Annot Lyle [(1886) 11 PD 114]; Scarborough v Lew's Junction Stores Pty Ltd [[1963] VR 129]. Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being nugatory: see Wilson v Church [No 2] [(1879) 12 Ch D 454]; Klinker Knitting Mills Pty Ltd v L'Union Fire Accident and General Insurance Co Ltd [[1937] VLR 142]. Generally that will occur when, because of the respondent's financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where for whatever reason, there is real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed: see McBride v Sandland [No 2] [(1918) 25 CLR 369]."
…
[22] In Rahme v Commonwealth Bank (1993) 117 ALR 618, Deane J said (at 620):
"Apart from the exceptional case in which special leave to appeal to this court has been actually granted, the final decision of the highest appellate court of a State or Territory is conclusive of the particular litigation. That being so, it is only in demonstrably exceptional circumstances, such as the immediate threat of the destruction of the subject matter of the litigation or of grave and irreparable damage being sustained, that an application to this court for interlocutory relief can be justified.”
We would add for completeness the decision of Kirby J in Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306 particularly commencing at p.308 where his Honour made observations on the principles governing applications for a stay pending determination of a special leave application.
CONCLUSIONS
The wife, although invited to do so, made no submission which revealed that there any matters of public importance, any special feature of the case or important questions of law arising from her appeal such that we would conclude that there is a substantial prospect that special leave to appeal will be granted. Of course as Kirby J remarked in Bryant v Commonwealth Bank at p.308:
… A decision on a stay application should not become an occasion for a detailed analysis of the issues that will arise in the special leave application and, if granted special leave, the appeal. Necessarily, the evaluation of the prospects of success will involve a judicial impression. But it is one that does not pre-determine, one way or the other, the substantive application;
It was submitted on behalf of the husband that a stay would cause substantial prejudice to the husband. Although the order was made by the trial Judge in March 2008 he still is without the funds from India to which he is entitled. The wife remains living in the matrimonial home which it appears has a net value of $194,195. The house in which the husband lives is encumbered for an amount that exceeds its value. Thus, for the husband to receive the property settlement to which he is entitled ($257,911) it is necessary for the moneys deposited in India to be repatriated to Australia.
We are not persuaded that the matters relied upon by the wife would meet the ground of the extraordinary remedy of a stay of this court’s orders. The circumstances relied upon by the wife in support of her application could not be described as exceptional in the sense explained in the authorities to which we have referred. Nor are we satisfied that a stay is required to preserve the subject matter of the litigation. The wife simply endeavours to preserve the funds in India until the hearing of her Application for Special Leave to the High Court of Australia.
This is not a case where, should the wife be successful in her Application for Special Leave and ultimately on appeal she would not be able to obtain a further share of the property of the parties.
Accordingly we would order that the application for a stay be dismissed.
COSTS
The legal representative for the husband asked for costs. The application being unsuccessful we are of the view that in this case it is a circumstance that would justify an order for costs. We make mention that in addition to asking for costs on behalf of the husband it was asked that when moneys are repatriated to Australia the wife’s share in some way be retained until the hearing of the special leave application. In the absence of an application on notice to the wife we would not make such an order.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 19 June 2009
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