Jeeves and Jeeves (No 2) - [2010] FamCA 284

FAMILY COURT OF AUSTRALIA

JEEVES & JEEVES (NO. 2)

[2010] FamCA 284

FAMILY LAW – PRACTICE AND PROCEDURE – STAY – Application for stay pending appeal against interlocutory order – Onus of proof on the applicant is higher in a stay application against an interlocutory appeal than an appeal against a final order

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. [1981] HCA 39; (1981) 148 CLR 170
B, M and Child Support Registrar [2003] FamCA 33
Cadbury Schweppes Pty Limited v Darrell Lea Chocolate Shops Pty Limited [2009] FCAFC 8
Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681
Nikolaidis v Legal Services Commissioner [2005] NSWCA 91
Rutherford and Rutherford [1989] FamCA 72; (1991) FLC 92-255
The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [1986] HCA 13; (1986) 160 CLR 220

APPLICANT:

Ms Jeeves

RESPONDENT:

Mr Jeeves

FILE NUMBER:

MLF

10167

2000

DATE DELIVERED:

19 APRIL 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

16 APRIL 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MS MOLYNEUX QC WITH MR COMBES

SOLICITOR FOR THE APPLICANT:

J A MIDDLEMIS

COUNSEL FOR THE RESPONDENT:

MR SWEENEY

SOLICITOR FOR THE RESPONDENT:

TAUSSIG CHERRIE & ASSOCIATES

Orders

That the application in a case filed on 16 April 2010 by the wife is dismissed.
That the wife file and serve her written submissions relating to the substantive hearing by 4.00pm on 3 May 2010.
That the husband file and serve his written submissions in relation to the substantive proceedings by 4.00pm on 17 May 2010.
That the wife file and serve any reply to the husband’s submissions by 4.00pm on 24 May 2010.
That the costs of both parties be the subject of written submissions to be filed and served by no later than 4.00pm on 24 May 2010.

IT IS NOTED that publication of this judgment under the pseudonym Jeeves & Jeeves is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 10167 of 2000

MS JEEVES

Applicant

And

MR JEEVES

Respondent

REASONS FOR JUDGMENT

The wife has appealed against two rulings that I made after the close of the parties’ cases about the admissibility of some bank documents produced under subpoena.
When the proceedings were adjourned on 22 March 2010, I made orders for the filing of written submissions relating to the trial that had taken many days over almost one year. I made allowance in the timetable for the filing of submissions about the substantive issues. The wife seeks a stay of those orders pending the determination of the appeal against the rulings.
The application in a case seeking the stay order was filed on Friday 16 April 2010 and I heard argument from each party through their counsel on that same day.
The applicant seeking the stay bears the onus of establishing that the discretion should be exercised in her favour. On the evidence presented and the submissions heard in argument, I must refuse the stay on the basis that the wife has not discharged that onus.
The two rulings may be summarised as follows:
(a)Evidence from a subpoenaed bank file should not be admitted into evidence; and
(b)The wife could not rely upon a series of affidavit evidence that had been used in the proceedings up until the final property orders were made in December 2003.
The arguments of the appellant wife seeking the stay can be summarised as follows:
(a)There would be prejudice to the wife if the stay was not granted but no prejudice to the husband either way.
There is no prejudice to the husband because he does not have any judgment in his favour;
The prejudice to the wife lies in her entitlement to have the Court bring a “fair and open mind” to her application under s 79A of the Family Law Act 1975. The ruling excluding evidence works against the wife because if a stay was not granted, it was analogous to saying that the Court had “heard enough” which in turn could give rise to an allegation of pre-judgment.
If a Full Court ruled that there had been an error of principle and directed the evidence to be considered, an argument of pre-judgment could also arise.
(b)There is an arguable principle on the appeal.
The wife had the husband’s consent during the trial to the admission of “tagged” file notes in a subpoenaed bank file but he subsequently changed his mind. As a consequence of the consent, the wife had conducted her case a particular way and had not called a bank officer to give evidence which would have covered the notes question. Thus, the wife was denied natural justice or procedural fairness.
In addition, the Court did not require the husband to give proper notice about the withdrawal of his consent and that was a procedural irregularity.
(c)The affidavits of witness Mr L were read into the evidence by the wife announcing after the trial began that she was relying upon them.
(d)Whilst the stay application invokes the exercise of discretion, it must be exercised judiciously.
For the Court to exercise its discretion judiciously, it must consider the relevance of the evidence which was the subject of the ruling, to the wife’s substantive s 79A application.
(e)There is no suggestion of any delay in bringing the stay application.
In support of her application, the wife filed an affidavit which she had sworn.
She said that when she had arranged under subpoena for the attendance of the relevant bank officer, counsel for the husband said he did not require the wife to call the witness to “prove the bank records” and the bank records so “tabbed” could be admitted not as to the truth of the representations but as to the fact that the representations were made.
In considerable detail, the wife set out what she saw in the documents. She said she was advised by her legal advisers that the “Credit Review” in the bank file recorded “a representation by the husband” about the duration that the natural resources site in the business had to run. That evidence is disputed by the husband and having ruled that the notes were not the husband’s representation I do not think the statement assists the wife.
The wife then said that the ruling meant the exclusion of representations made by the husband to Mr L. That too was disputed by the husband. Mr L gave evidence in the trial before me and was cross-examined at some length about what discussions he had with the husband leading up to the completion of his valuation. I do not see how any evidence as suggested by the wife was in fact excluded.
The arguments of the respondent husband resisting the stay can be summarised as follows:
(a)The wife could not have been said to have been denied natural justice because after making the order on 22 March, there was a series of emails between counsel (and apparently into which the Court was linked) in which it was said that the problem of the evidence of the bank file could be overcome by the wife obtaining an affidavit of the bank officer detailing what had occurred. That was the husband’s suggestion rejected by the wife.
Counsel for the husband said that the emails would be tendered at the appeal if the wife argued that she had been prejudiced by the ruling.
(b)If there was any prejudice to the wife, it could have been overcome by the wife seeking to call the bank officer. Senior Counsel for the wife told me that had been contemplated but decided against.
(c)The argument about disqualification because of bias was a “veiled threat”.
(d)The applicant had a high onus to establish.
(e)Although he did not have the transcript, Mr Sweeney for the husband said he thought he had objected to the wife’s reliance upon the affidavits of Mr L other than that which was his substantive evidence for the s 79A trial.
Senior Counsel for the wife handed to me the decision of the Full Court of the Federal Court of Australia in Cadbury Schweppes Pty Limited v Darrell Lea Chocolate Shops Pty Limited [2009] FCAFC 8. In that case, the trial judge had rejected evidence that Cadbury had sought to adduce. The Full Court held that the judge had overlooked s 80 of the Evidence Act 1995 (Cth) and remitted the case back to the trial judge. Section 80 is about the admission of evidence of opinion. I rejected the evidence on the grounds that I could not be satisfied that the documents sought to be admitted contained representations of asserted facts; that is, facts asserted by the husband upon which the wife wished to rely.
Cadbury sought to have the trial judge disqualify himself on the basis that in excluding the evidence, his Honour had described it as “vague, tendentious and of little weight”. That could not be said of what I ruled.
When the Full Court in Cadbury sent the matter back to the trial judge, their Honours said there was no reason to conclude that the trial judge would not bring a fair and open mind to the issue but that if that were not so, having regard to his ruling, it was a matter for the trial judge to decide whether it was appropriate to disqualify himself.
The evidence put before me was rejected for the reasons outlined. It was not a matter of pre-judgment but rather that it was not the evidence as argued by the wife. If I was wrong about that issue, the Full Court can deal with the matter in same way as their Honours did in Cadbury.
I turn then to the question of the stay.
The orders made on 8 April 2010 were interlocutory orders. As such, leave to appeal is necessary because of s 94AA(1) of the Act.
There can be little doubt about the applicable principles to be applied in hearing a stay application pending an appeal. (See The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [1986] HCA 13; (1986) 160 CLR 220 at 230; Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681.)
The authorities referred to reiterate that the relief sought is discretionary. From the authorities, the relevant principles to be applied in a case relating to an interlocutory order can be distilled as follows:
· Is there a risk that an appeal may be rendered nugatory if a stay is not granted?
· Does the appellant have an arguable case?
There are other principles to be drawn from authorities where the appeal is against a final order. I do not see their relevance here.
Clearly, if a refusal of a stay against a final order would render the appeal nugatory, there is a very strong argument in favour of granting the stay. As Brennan J said in Jennings Constructions, in an application for special leave to appeal, if the appeal would be futile unless a stay was granted, the jurisdiction arose.
In the case of an interlocutory order, it is much harder for the appellant to argue futility because there is still a final determination to be made against which, there can potentially be an appeal.
I asked each counsel whether there was a different standard for an interlocutory as distinct from a final judgment case. The wife’s position was that the onus was higher in respect of a final hearing than in an interlocutory hearing. Counsel for the husband saw it the opposite way.
In cases of applications for a stay against a final order or for special leave in the High Court, the authorities refer to the jurisdiction as being extraordinary. In respect of the latter, there is little doubt about the finality of the judgment or order if the special leave is unsuccessful. In respect of the former, the authorities refer to the judgment holder being entitled to the fruits of the judgment. If those sorts of circumstances have to be shown in those cases to obtain a stay, the onus on the applicant is high. In the case of an interlocutory order, the onus must be higher because of the lack of the finality features I just mentioned.
In Nikolaidis v Legal Services Commissioner [2005] NSWCA 91, it was said that the likely outcome if there was no stay must be so adverse and severe that the attainment of justice requires interlocutory intervention. That is, the applicant has to show that there will be some adverse consequence of allowing the proceedings under challenge to continue or that its impact will be severe.
In stay applications relating to final orders, one consideration is the balance of convenience. In Nikolaidis it was suggested and with respect, I agree, the higher onus requires the consideration to be one of necessity.
This is not a situation where the proceedings will come to a halt creating significant inconvenience. However, the proceedings had concluded and a major, but not the only, concern for the court that the preparation of submissions and the writing of a judgment will be delayed. As the proceedings have already been disjointed because of my inability to devote uninterrupted time to it for over a year, waiting the outcome of an appeal creates unfair pressures associated with memory recall as to not only the evidence but also issues associated with the credibility of witnesses.
In respect of the issue of whether or not the appellant has an arguable case, it is important to bear in mind the nature of the problem of an application for leave to appeal.
An applicant seeking leave to appeal must demonstrate that there has been an error of principle and/or a substantial injustice to one of the parties: Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. [1981] HCA 39; (1981) 148 CLR 170 at 177. Rutherford and Rutherford [1989] FamCA 72; (1991) FLC 92-255 at 78,715.
In so far as it might be said that whilst there is no substantial injustice but rather a principle of general importance, it was said in B, M and Child Support Registrar [2003] FamCA 33 the Full Court (Kay, Coleman and Guest JJ):
... Whilst questions of public importance may be relevant to an application for special leave to the High Court, unless it can be shown that there has been some error of principle affecting the parties to this suit, or that the applicant may suffer an injustice, the mere fact that the answer is important to many other people is not in our view an appropriate basis for granting the leave sought.
I do not see any principle here having regard to the opportunity the wife had to overcome what she perceived as a procedural irregularity. I do not see any substantial injustice because there is still a judgment to be delivered.
In this case, it is important that I objectively consider whether the wife has an arguable case upon an appeal. I appreciate that it is difficult and perhaps even presumptuous to comment upon one’s own judgments but in my view, there is little I can see that is arguable.
The admission of evidence is a discretionary one for a trial judge because a determination has to be made about what is relevant. That is not really the substance of the appellant’s argument.
The principle argued by the appellant in this case is that she was not accorded procedural fairness because after evidence was admitted consensually, it was later ruled irrelevant and therefore inadmissible as a result of the respondent changing his position. There are two matters that militate against the wife’s claim of a denial of natural justice. First, there was apparently discussion between counsel subsequent to the adjourned date and prior to the ruling about how any problem could be rectified. Senior Counsel for the wife said that the husband had not “consented” to whatever it was that the wife wanted to do. No doubt, the emails will speak for themselves. Secondly, any prejudice to the appellant could have been overcome by an application to re-open her case to call the evidence that she said may have clarified the position. That she did not do. Senior Counsel said that she had contemplated that application.
If the appeal is unsuccessful, significant memory would have been lost requiring revision of notes, transcript or research at added expense to the parties. In a case where I consider the onus on the applicant is high, that is a significant factor for a Court to take into account. That is particularly so in these times of straitened resources.
Accordingly, I do not see that the wife has satisfied the onus of establishing either an arguable case or that a refusal to grant a stay would render the appeal nugatory. In addition, I do not see the prejudice referred to by her senior counsel.
In respect of the “second ruling”, the transcript will speak for itself in respect of what evidence was lead by the appellant through her senior counsel of the witness L. Mr L did not refer to all of the affidavits that had been listed and was only referred to one. In my view, where there is objection, the wife cannot simply rely upon a series of documents without the witness referring to them as being part of his evidence.
I do not find there to be any necessity for the order for a stay pending an appeal being determined. I could not find on the applicant’s material that there is an arguable case.
I was asked by Senior Counsel for the wife to extend time and also give her a right of reply if the wife was unsuccessful. Counsel for the husband did not oppose a lengthy extension and said nothing about the reply. In those circumstances, I will grant an extension of 14 days for the filing of the wife’s submission and give her a right of reply but that must be within 7 days after the husband filed his written submission.

I certify that the preceding Thirty Nine (39) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date: 19 April 2010