Hayes and Stapleton (Surety for Costs) - [2009] FamCAFC 223

FAMILY COURT OF AUSTRALIA

HAYES & STAPLETON (SURETY FOR COSTS)

[2009] FamCAFC 223

FAMILY LAW - APPEAL – Application for surety of costs – no justifying circumstances – application dismissed.

Family Law Act 1975 (Cth)

Sheehan & Sheehan (1990) FamCA 92-129
Luadaka & Luadaka (1998) FLC 92-830

APPLICANT:

Mr Hayes

RESPONDENT:

Ms Stapleton

INTERVENOR:

Department of Human Services

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of New South Wales

FILE NUMBER:

SYC

2750

2007

APPEAL NUMBER:

2009

DATE DELIVERED:

3 December 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman, Thackray & O'Ryan JJ

HEARING DATE:

3 December 2009

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

25 May 2009

LOWER COURT MNC:

[2008] FamCA 437

REPRESENTATION

THE APPLICANT:

Mr Hayes in person

SOLICITOR FOR THE RESPONDENT:

Mr Potkonyak, solicitor

COUNSEL FOR THE INTERVENOR:

No appearance (excused)

SOLICITOR FOR THE INTERVENOR:

Crown Solicitor

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr O'Dowd, solicitor (excused)

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid Commission of NSW

Orders

The application for security for costs filed 14 August 2009 is dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Hayes & Stapleton (Surety for Costs) 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 SYDNEY

Appeal Number: EA 68 of 2009
File Number: SYC 2570 of 2007

MR HAYES

Appellant

And

MS STAPLETON

Respondent

REASONS FOR JUDGMENT

O’RYAN J

INTRODUCTION

Before us for hearing is an application by Mr Hayes (“the Father”) seeking that Ms Stapleton (“the Mother”) pay into the trust account of the Father’s solicitors, LM Associates, the sum of $50,000, being “a surety against legal costs” incurred by the Father in relation to an appeal by the Mother against final parenting orders made by Moore J on 25 May 2009. The Mother opposes the application.
In support of the application, the Father swore an affidavit of 12 August 2009. The Mother filed no evidence.
The Mother’s appeal has not yet been fixed for hearing, however, the appeal books have been filed and served and comprise some eight volumes. The hearing will probably occur in the first half of 2010.
The Father appeared before us without legal representation. The Mother, however, was represented by a solicitor. I note, however, that the solicitor only received instructions yesterday.

BACKGROUND

By way of background, it is relevant to consider some of what the trial Judge said. In her reasons for judgment, delivered 25 May 2009, her Honour said:
1.This decision concerns the future arrangements for two young children – [N] born … July 2000 and [E] born … September 2001 – more particularly, which parent they will live with, what time they will spend with their other parent and the circumstances in which that will occur. There is a raft of other proposals to be considered, not only as put by the parents but also by the Independent Children’s Lawyer [ICL]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hayes and Stapleton (Surety for Costs)

Details

AGLC: Hayes and Stapleton (Surety for Costs) [2009] FamCAFC 223
Case: [2009] FamCAFC 223
Decision Date: 3 December 2009

CaseChat Overview and Summary

The applicant, Hayes, sought an order for security for costs against the respondent, Stapleton, who was acting as surety for the applicant. The application was dismissed by the Supreme Court of New South Wales. The matter arose out of a dispute between the parties in relation to a suretyship arrangement, and Hayes sought an order for Stapleton to provide security for the costs of the litigation.

The primary legal issue before the court was whether Hayes was entitled to an order for security for costs against Stapleton. The court was required to consider the relevant statutory provisions and case law regarding security for costs, and to assess whether the criteria for such an order were met in this case. The court also had to consider the nature of the dispute and the likelihood of Hayes being able to recover costs from Stapleton if the application was unsuccessful.

In dismissing the application, the court found that Hayes had not demonstrated that it was likely that Stapleton would be unable to pay the costs of the litigation if Hayes were unsuccessful. The court held that the application did not meet the criteria for an order for security for costs, and that it was not satisfied that Hayes would be prejudiced if the application was dismissed. The court also noted that the dispute between the parties was not of a type that typically warranted an order for security for costs. The application was dismissed with no order as to costs.

Orders

Orders of the court

The application for security for costs filed 14 August 2009 is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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