Jess & Jess (No 8)
[2023] FedCFamC1F 395
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Jess & Jess (No 8) [2023] FedCFamC1F 395
File number MLF 3444 of 2006 Judgment of WILSON J Date of judgment 19 May 2023 Catchwords FAMILY LAW – interlocutory stay application – refused. Legislation Family Law Act 1975 s 121 Cases cited Aldridge & Keaton [2009] FamCAFC 106
Bienstein v Bienstein (2003) 30 Fam LR 488
Blakeley & Jaine (No 3) [2020] FamCAFC 781
Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246
Hearne v Street (2008) 235 CLR 125
Jackson & Balen [2009] FamCAFC 131
Keevers & Keevers (No 2) [2022] FedCFamC1F 163
Malloy & Stopford Malloy [2020] FamCAFC 270
Medlow v Medlow (2016) 54 Fam LR 389
Nikolaidis v Legal Services Commissioner [2005] NSWCA 91
Division Division 1 First Instance Number of paragraphs 16 Date of last submissions 16 May 2023 Date of hearing 16 May 2023 Place Melbourne Counsel for the applicant Mr G. Dickson KC with Ms R. Matson Solicitor for the applicant Kenna Teasdale Lawyers Counsel for the first respondent No appearance Solicitor for the first respondent No appearance Counsel for the represented third parties Mr I. G. Waller KC and Mr J. Mereine Solicitor for the represented third parties HWL Ebsworth Lawyers Counsel for the intervenors Ms N. Papaleo Solicitor for the intervenors Lander & Rogers ORDERS
MLF 3444 of 2006 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MS JESS
Applicant
AND MR J AS LEGAL PERSONAL RESPRESENTATIVE OF MR JESS SNR (DECEASED)
First Respondent
MR JESS JNR AND OTHERS
Represented Third Parties
MR K AND MR L AS TRUSTEES OF THE BANKRUPT ESTATE OF MR JESS SNR
Intervenors
order made by
WILSON J
DATE OF ORDER
19 MAY 2023
THE COURT ORDERS THAT –
1.The represented third parties’ application to stay my orders made 27 April 2023 is dismissed.
2.I adjourn the further hearing of this proceeding to 10:00am on 3 November 2023 for mention in the Major Complex Financial Proceedings List or such earlier date by which the Full Court hears and determines the appeal from Jess & Jess (No 7).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jess & Jess has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
By notice of appeal filed 4 May 2023, the represented third parties have sought leave to appeal against aspects of orders made by me on 27 April 2023 and they have appealed without leave against orders I made relating to jurisdiction. They seek a stay of the orders made on 27 April 2023.
The wife opposed the represented third parties’ stay application.
The trustees-in-bankruptcy, through their junior counsel, indicated that they did not wish to be heard, viva voce, on the stay application. That was because, so Mr Waller KC informed me, the trustees had consented to a stay of the orders made in paragraphs 1, 6 and 7 of the 27 April 2023 orders. Mr Waller KC conceded that the orders in paragraphs 4 and 5 of the 27 April 2023 orders required leave.
Mr Waller submitted that his clients did not require leave to appeal in relation to any determination made by me concerning jurisdiction.
Mr Dickson KC who appeared with Ms Matson for the wife submitted that the effect of the 27 April 2023 orders was to dismiss the summary applications made by the represented third parties (paragraphs 1, 2 and 3) and to grant leave to the trustees to amend their cross claim. Otherwise, the orders amounted, so he said, to little more than a direction (paragraphs 4 and 7) to bring in a minute giving effect to my reasons. Mr Dickson submitted that no positive obligation (beyond bringing in a minute) was imposed by any of the 27 April 2023 orders.
Mr Waller KC submitted that it was sensible to grant a stay of all orders made 27 April 2023 pending the determination of parties’ appearances before the Full Court. He was unable to say when this matter was likely to be heard yet both Mr Waller and Mr Dickson expressed optimism in the application being dealt with at intermediate appellate level by the end of the calendar year. Mr Waller submitted that in the context of an appeal which was likely to be heard in six months or thereabouts, no reason existed to expedite the case on its quest to trial.
NATURE OF THE ORDERS MADE 27 APRIL 2023
In my view the orders made on 27 April 2023 were interlocutory. They did not finally determine the rights of the parties.[1] Even the determination about jurisdiction is interlocutory. But it must not be overlooked that I held that all facts grounding jurisdiction needed to be determined at trial before it could be said that jurisdiction does or does not exist. Mr Waller said that was erroneous. I take the view that in making that determination and in making the orders as were made on 27 April 2023, the rights of the parties have not been finally determined.
[1] Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 and Bienstein v Bienstein (2003) 30 Fam LR 488.
THIS STAY APPLICATION
On the hearing of a stay application concerning interlocutory orders, an applicant for a stay has a hard road to hoe. A stay is not to be lightly granted, as I mentioned in Keevers & Keevers (No 2),[2] relying on the observations of Bryson JA in Nikolaidis v Legal Services Commissioner.[3] His Honour held as follows –
The power to order a stay is discretionary and such an intervention should not take place lightly. The outcome which is likely if there is no stay must be so adverse and severe that the attainment of justice requires interlocutory intervention. It must be shown that it is likely that there will be some adverse consequence of allowing the proceedings under challenge to continue and that the outcome will be so difficult to remedy or otherwise so adversely severe in its impact that intervention by the Court of Appeal should take place notwithstanding that there has not yet been an opportunity for full consideration.
[2] [2022] FedCFamC1F 163.
[3] [2005] NSWCA 91.
Mr Waller KC submitted that in relation to the discovery order in paragraph 5 of the 27 April 2023 orders, the represented third parties will suffer irretrievable detriment unless that order is stayed. He said the task of providing 14 years’ worth of discovery is itself enormous and a very high risk exists that the information in the discovered documents cannot be safely contained, despite the prohibition on dissemination in s 121 of the Family Law Act 1975 and the implied undertaking in Hearne v Street[4] as adumbrated in Malloy & Stopford Malloy.[5]
[4] (2008) 235 CLR 125.
[5] [2020] FamCAFC 270.
Mr Waller submitted that the appeal may very well be rendered nugatory unless the stay sought is ordered. That proposition, he said, was all the stronger in relation to the discovery orders because it will be near impossible to redress the prejudice occasioned by the discovery that must be provided if the appeal succeeds.
I do not agree.
Even voluminous disclosure must be given so long as it is relevant.
This is not a case involving a stay application after trial. Therefore, principles espoused in Aldridge & Keaton,[6] Jackson & Balen[7] and Blakeley & Jaine (No 3)[8] are not applicable.
[6] [2009] FamCAFC 106.
[7] [2009] FamCAFC 131.
[8] [2020] FamCAFC 781.
On the hearing of the application for leave to appeal against an interlocutory order, the represented third parties will be required to demonstrate that they meet the test in Medlow v Medlow.[9] Whether they are able to do so remains to be seen. Mr Dickson KC made written submissions about my decision appealed against not being attended by sufficient doubt as to warrant the grant of leave to appeal. It is not appropriate for me to make observations in support of contentions about there being no merit in the appeal. Mr Waller is correct when submitting that all litigants are entitled to explore remedies on appeal.
[9] (2016) 54 Fam LR 389.
In my view, the fate of this stay application is to be determined by reference to the test for granting a stay of one or more interlocutory orders. The test was propounded by Bryson JA in Nikolaidis. I do not accept the contention that the appeal will be rendered nugatory unless my orders of 27 April 2023 are stayed.
I dismiss the represented third parties’ application to stay my orders made 27 April 2023.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the reasons for judgment of the Honourable Justice Wilson. Associate:
Dated: 19 May 2023
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