Karbines and Karbines - [2011] FamCAFC 172

FAMILY COURT OF AUSTRALIA

KARBINES & KARBINES

[2011] FamCAFC 172

FAMILY LAW – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – where the Notice of Appeal was incomplete – where consent orders were made for an amended Notice of Appeal to be filed – where the application was adjourned to await receipt of the amended Notice of Appeal.

APPLICANT:

Ms Karbines

RESPONDENT:

Mr Karbines

FILE NUMBER:

MLF

2479

2005

APPEAL NUMBER:

2010

DATE DELIVERED:

19 August 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

19 August 2011

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

5 November 2010

LOWER COURT MNC:

[2010] FamCA 1020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Tredrea

SOLICITORS FOR THE APPLICANT:

CE Legal Pty Ltd

COUNSEL FOR THE RESPONDENT:

In person

SOLICITORS FOR THE RESPONDENT:

Patrick Cash & Associates

Orders

Paragraphs 1 and 4 of the Application in an Appeal filed on 28 June 2011 be dismissed.
By consent within 28 days of the date hereof the appellant file and service an amended Notice of Appeal setting out:
a)Whether or not leave to appeal is sought.
b)The facts relied upon to support any application for leave to appeal.
c)The paragraphs of the order being appealed or proposed to be appealed.
d)The grounds of appeal or proposed appeal.
e)Any amended orders sought in any appeal or proposed appeal.
Paragraph 3 of the said application be adjourned for further consideration to 9:00 am on Monday 26 September 2011.
The question of costs be reserved to the adjourned hearing date.

Noting that

Given the current state of the Notice of Appeal filed on 3 December 2010, namely that it is incomplete and further given the orders that I have made today and the adjourned hearing date the appeal is not to be listed in the appeal list for the week commencing

3 October 2011

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 92 of 2010
File Number: MLF 2479 of 2005

Ms Karbines

Applicant

And

Mr Karbines

Respondent

EX TEMPORE REASONS FOR JUDGMENT

I have before me today an Application in an Appeal filed by the wife on

28 June 2011 seeking a number of orders. However, paragraphs 1 and 4 are not pursued, and in relation to paragraph 4 that is a result of my indication to counsel that that is not an order that I as a single judge can make and it needs to be an application made to the Full Court that hears this appeal.
That left in issue paragraphs 2 and 3 of that Application. However, paragraph 2 became the subject of agreement namely that I should make an order that within 28 days the appellant file an amended Notice of Appeal setting out a number of matters.
Just to perhaps put that into context, one of the very real difficulties here with not only the application before me today, but more significantly the appeal itself, is that the Notice of Appeal which was filed on 3 December 2010 is incomplete, and it is incomplete in significant areas. Just one example is there are no grounds of appeal specified in the Notice of Appeal, nor is it identified in the Notice which orders are being appealed against and again, another example is that Part C of the Notice which is the leave to appeal section has been partly completed. Thus the problem is obvious in relation to the progress of the appeal, and put quite simply without grounds of appeal the appellant cannot hope to succeed in the appeal. Whether an order was made today by agreement or otherwise for an amended Notice of Appeal to be filed that was going to have to be addressed at some stage by the appellant; it is just that it has been brought to a head by this application filed by the respondent. In any event, as I say, that is a matter that is agreed and I will shortly make an order by consent in the terms that I have indicated.
The other order sought that was an issue is paragraph 3 of the application wherein the respondent sought that the appellant give security for costs of and incidental to the application. That application is opposed by the respondent.
Mr Tredrea has provided a helpful outline of submissions which details the background to this application, provides specific submissions on the issue of security for costs, identifies the relevant section of the Family Law Act 1975 (Cth) and the rule in the Family Law Rules 2004 (Cth), and also refers to a number of authorities. Mr Karbines who appears in person today has the benefit of now reading that outline, and although he has received it late he has not sought an adjournment for the purposes of further considering it. He has found himself in some difficulty today though because although he has solicitors on record, he has indicated to me that for various reasons, one of which appears to be that the primary solicitor who has the conduct of this matter on his behalf is now in hospital, there has not been anyone from the firm of solicitors who has been able to appear today for Mr Karbines, and thus he is appearing in person. Again though he did not initially at least seek any adjournment to enable him to be represented on this application.
Mr Tredrea today pursues his client’s application in so far as seeking an order for security for costs and as I have commented during the course of the hearing, if I were to decide this matter today on the documentation as it currently stands and taking into account the history of the matter particularly, I would be disposed to make an order for security for costs. For example, because as it stands the appeal has no prospects of success given there are no grounds of appeal identified, there is a history of failure to comply with orders of the Family Court (and particularly in relation to orders for costs) by the appellant, and the financial circumstances are such that, although the appellant is bankrupt and impecuniosity is not a bar at least in the Appeal Court to making an order for security to costs, he has been able to arrange for legal representation not only in the Family Court but also in other courts. He has other litigation on foot, which was originally in the Supreme Court of Victoria but now as I understand it has been transferred to the District Court of South Australia. Thus the primary factors that would need to be considered on an application for security of costs, as the matter stands today, all favour the applicant’s position.
However, as I have raised with both Mr Tredrea and Mr Karbines, given that it is now agreed that Mr Karbines will file within 28 days an amended Notice of Appeal, my concern is that I should await receipt of that document before finalising this matter, given that presumably that amended Notice will include grounds of appeal and complete the original Notice of Appeal as necessary, and given that one of the primary factors to be considered on an application for security for costs is the merits of the appeal.
Mr Tredrea has urged me regardless of that fact or circumstance to finalise the matter today. He has in effect put to me, and these are my words, that it would be difficult to understand what grounds of appeal the appellant could include in his Notice of Appeal which would have any prospects of success given the history of this matter, the judgment appealed from, and the issues seemingly being raised on the appeal.
Although to a certain extent I agree with Mr Tredrea and obviously I am speaking from a point of view of the documents as they currently stand, it seems to me I cannot exclude the possibility of there being a ground or grounds of appeal that Mr Karbines and his legal advisors come up with which might indicate some prospect of success. Thus reluctantly I propose to adjourn this matter to await receipt of the amended Notice of Appeal.
I have taken the opportunity though to hear in effect all of the submissions that Mr Tredrea has and also all of the submissions that Mr Karbines has on the topic. That does not mean that on the adjourned hearing date that either of them cannot put further submissions to me, but the primary purpose of the adjournment would be to await, as I say, receipt of the amended Notice of Appeal and consider the issue of the merits of the appeal on the basis of the grounds of appeal identified in that document. However, and to be perfectly frank, if those grounds of appeal do not reveal any prospect of success then

Mr Karbines would be hard pressed to persuade me that with all the other factors being in place, that I should not still order security for costs.
The other issue that I have raised in arguendo is whether the application is to be amended, or a further application to be made, seeking the dismissal of the appeal, and such an application being then pursued rather than seeking security for costs. Mr Tredrea will take that on board and pass it onto his instructing solicitors. At this stage there is no such application before me and I am dealing solely with an application for security for costs, but it just struck me that in the circumstances it might be another way to deal with this matter. I do not consider my comments in that regard prejudice Mr Karbines as it seems to be an obvious application to make if we still have a notice of appeal that has no grounds of appeal or if there are grounds of appeal where there is no prospect of success but I will not say anything more about that issue.
Finally I note that Mr Tredrea had an understandable concern in terms of adjourning the matter and that was the prospect of the appeal being listed in any event. Now I know there has been correspondence emanating from the Appeals Registrar indicating that if all documents are filed and in place this appeal could be listed in the Full Court sittings in the week commencing

3 October 2011. For my part that is not a possibility in the circumstances, (a) we have to await an amended notice of appeal, and (b) we still have to finalise the question of security for costs, and both those matters have to be well and truly finalised before any suggestion of the appeal being listed should be considered and indeed I am prepared to make a notation to that effect.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 19 August 2011.

Legal Associate:

Date: 19 August 2011