Hall and Hall (No 3)

[2016] FamCA 285

FAMILY COURT OF AUSTRALIA

HALL & HALL (NO 3) [2016] FamCA 285

FAMILY LAW – PRACTICE AND PROCEDURE – stay of proceedings – where the husband seeks a stay until determination of the application for leave to appeal is determined – where the Court is not satisfied that there is significant prospect of there being an arguable case – where the basis for a stay is not established – where the application is dismissed.

FAMILY LAW – COURTS AND JUDGES – disqualification – apprehension of bias – where the application is dismissed given there is no material before the Court to support the application.

Family Law Act 1975 (Cth)

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

APPLICANT: Mr Hall

RESPONDENT: Ms Hall

FILE NUMBER: ADC 3671 of 2013

DATE DELIVERED: 22 April 2016

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Dawe J

HEARING DATE: 22 April 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Hurley

SOLICITOR FOR THE APPLICANT: Jordan & Fowler Barristers & Solicitors

COUNSEL FOR THE RESPONDENT: Mr Livesey QC

SOLICITOR FOR THE RESPONDENT: Barnes Brinsley Shaw Lawyers

Orders

1. Paragraphs 2 and 6 of the Application in a Case filed by the husband on 15 April 2016 are dismissed.

IT IS FURTHER ORDERED IN CHAMBERS THAT

1. Further consideration of paragraphs 3, 4, 5 and 7 of the Application in a Case filed by the husband on 15 April 2016 is adjourned to the Registrar to a date and time to be fixed before a Judge for directions.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Hall & Hall (No 3) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 3671 of 2013

Mr Hall

Applicant

And

Ms Hall

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This is an Application in a Case which was listed urgently.  The application was filed on 15 April 2016 and seeks an urgent listing.  Paragraph 2 relates to a stay of the orders I made on 1 April 2016 which required certain steps to be taken within 14 days.  Because the appeal has been filed and the application for stay requires to be dealt with, I listed it before me this morning.

2. The application, however, also deals with other matters including the orders in relation to sole use and occupation, discovery and disclosure of funds in relation to costs.  Paragraph 6 of the Application in a Case filed by the husband’s solicitors seeks:

   The Honourable Justice Dawe be disqualified from further adjudication of any aspect within the proceedings.

3. The affidavit which was filed in support of that Application in a Case is the affidavit of Ms Dodson, who is the solicitor for the husband.  It has headings.  Above paragraph 4 it states “Urgent listing, an application for a stay”.  That continues through to paragraph 13, the heading of which is “Disqualification”.  The material then reads, paragraph 13:

   My client has further instructed me to bring an application that Justice Dawe recuse herself from the hearing of any further aspect of these proceedings upon the grounds of apprehended bias.

   (14)   Upon a hearing date for the application being allocated, I propose to file a written submission outlining the reasons why such an order should be made.

4. There has been no further material in relation to the disqualification filed.  I am now being asked to adjourn that part of the application for hearing at a later date, but to continue to hear the stay application this morning.

5. The submissions on behalf of the wife made by counsel are considered to be correct in that the application of its very nature puts the Court in an invidious position which needs to be dealt with before considering other matters.  If I should disqualify myself, then it would be inappropriate to hear the rest of the applications.

6. In this case, however, the disqualification application can be dismissed because there is no material before the Court upon which a proper disqualification would arise.  The solicitor having received instructions that such an application be brought is not a basis upon which the Court would find that there is apprehended bias.  Paragraph 14 says that there is to be further written submissions outlining the reasons.  That has not been filed.

7. In view of the need to deal with the application in relation to a stay today, I consider that there is no basis currently before the Court upon which an application could be successful that I disqualify myself from hearing any of the matters in these proceedings between the parties.   I, therefore, dismiss paragraph 6 of the Application in a Case filed on 15 April 2016.

8. There is a further Application in a Case, again filed on 15 April 2016, in which the husband seeks in paragraph 2 that the operation of orders 1 to 4 inclusive of the orders I made on 1 April 2016 be stayed until determination of the application for leave to appeal from those orders, filed in the Southern Appeal Registry contemporaneously herein. 

9. The material in support of that application for a stay includes the affidavit of the solicitor for the father, Ms Dodson, which was also filed on 15 April 2016.  The orders that relate to the appeal are the orders which I made on 1 April 2016, following upon argument heard when the matter was before me on 10 March 2016, when I made detailed orders in relation to other matters but reserved my decision in relation to the valuations issues.  Those orders were then made on 1 April 2016 for the brief reasons which I delivered on that date.

10. The orders, paragraph 1 to 4, provide that within 14 days of that date the husband to provide written instructions to the single expert valuers as set out in paragraphs 8 and 9 of the orders of 10 February 2015, as amended by paragraphs 1, 2 and 7 of the orders of 22 February 2015, that:

    (2)Within seven days of the husband complying with the above-mentioned  order, the husband forward to the solicitors for the wife written confirmation of his compliance with the orders, and

    (3)that if the husband fails to comply with (1) or (2) of the above orders, then the requirement for the husband to authorise the commencement of the valuations pursuant to paragraphs 8 and 9 of the orders of 10 February 2015, as amended on 22 September 2015, and as further amended by the order of this date, be dispensed with and that the husband pay the wife’s costs on a party/party basis in relation to the instructions for the valuations being

    (a)   the cost of subpoena issued by the wife hereafter to the husband’s accountants for the provision of necessary documents to enable the valuations to progress, and

    (b)  the additional costs of the wife in instructing the valuers and providing documents requested of the husband,

    such costs to be determined in accordance with the Family Law Rules 2004.

    (4)That the husband pay the wife’s costs of and incidental to the Application in a Case filed on 16 February 2016, such costs to be agreed and, in default of agreement within one month as assessed.

11. Those orders obviously were made, taking into account the directions orders for preparation of this matter for trial which commenced in February 2015 and were varied against in September 2015, and then varied again on 1 April 2016.

12. The orders which were made in April 2016 were made for the reasons given in relation to those orders at the time.  These are interim and procedural orders to obtain valuations of the properties of the parties including the valuation of their interests in numerous entities in which both the husband and the wife are involved in various ways.  There is a substantial number of entities referred to in the reasons for judgment I gave on 1 April 2016.

13. The wife has an interest in several of the entities in the V Group, being S Corporation Holdings, and the husband has an interest in a large number of various companies and trusts, being all set out in paragraph 3 of my reasons for judgment which should be considered in this application.

14. The orders that I made on that occasion took into account the objections that had been previously made in relation to subpoenaed documents, and the issues that arose in relation to the claim that the wife had a greater interest in the V Group than she was admitting or had been disclosed.  They are issues which will need to be determined in due course when all of the contested evidence is heard and findings made in relation to that evidence.

15. It is, however, significant that the orders which were made on that occasion, on 1 April 2016, which are the subject of the appeal, are orders which were attempting to move along procedural orders for the preparation of valuations of the husband’s interest in various entities and the wife’s interest in various entities.

16. The appeal that has been lodged against those orders of 1 April 2016 is annexure B to the affidavit of the husband’s solicitors filed on 15 April 2016.  In summary, all grounds of appeal relate to a claim that adequate reasons were not given for the making of the orders or the failure to make the orders that the husband sought, and that there was no procedural fairness allocated to the husband in that he has alleged he was not given sufficient opportunity to be heard in relation to the orders which were sought.

17. I do not have in front of me now the transcript of the hearing on 10 March 2016, but I accept that at the hearing before me the husband was represented by Mr Lindsay of counsel, and the wife by Mr Livesey QC.  There was substantial argument in relation to many of the issues that were outstanding in relation to the matters that were before me that commenced at 10.00 am that day and concluded, I believe, about the time of the luncheon adjournment when orders were made in relation to children’s issues and other financial matters, with the issue concerning the valuations reserved for the judgment which I delivered on 1 April 2016.

18. In relation to the question of stay, I accept that the Aldridge & Keaton (Stay Appeal) [2009] FamCAFC106 authority is one of significance. In relation to those matters, the onus is on the applicant for the stay to establish a proper basis for the stay. I accept that it is not necessary for there to be special or exceptional circumstances but I must take into account that the person who has obtained the judgment is entitled to the benefit of that judgment and to presume it is correct. The mere filing of an application for a stay is not sufficient, nor is the mere filing of an appeal.

19. Counsel for the wife points out that significant matters in this case for me to determine are the bona fides of the applicant husband, the basis upon which the appeal is made, and the chance of success.  I am not able at this stage to make a definite finding in relation to the bona fides of the applicant, save and except that the difficulty I have in this matter is that the question of the delay in obtaining the valuations seems to relate to the cost of the valuations and the risk that, because of the appeals filed by the husband, there may be a need to update the valuations due to the time that might expire.  There may be a need to expand on the valuations if the appeal in relation to subpoenaed documents is successful.

20. These are matters which I take into account and can, therefore, not find specifically that there is a sufficient basis upon which to call into doubt the bona fides of the applicant.  There is a need to weigh up the risk of the appeal being rendered nugatory if the stay is not granted and the benefit and the fairness to both of the parties.

21. Weighing up the risk of the appeal being rendered nugatory, I need to take into account some preliminary assessment of the strength of the case on the appeal.  I am not satisfied, taking into account the grounds of the appeal, that there is significant prospect of there being an arguable case.  I do not have to find that there is a significant prospect of an arguable case.  I simply have to be satisfied that there is an arguable case.  The matter before me is such that the arguable case could exist if the argument by the husband that the reasons were unsatisfactory or if the argument concerning him not being given sufficient opportunity to respond to the proposals were successful.

22. Taking into account, however, my knowledge of the history of the matter and of the allegations and submissions made in the Notice of Appeal, I am not satisfied that the basis for the stay has been established, even though, on the face of it, the appeal would be rendered nugatory because the orders of 1 April 2016 will provide for the wife to proceed with the valuations of the entities.

23. I, therefore, dismiss the application for the stay.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 22 April 2016.

Associate: 

Date: 2 May 2016