Keevers & Keevers (No 2)
[2022] FedCFamC1F 163
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Keevers & Keevers (No 2) [2022] FedCFamC1F 163
File number(s): MLC 9192 of 2021 Judgment of: WILSON J Date of judgment: 15 March 2022 Catchwords: FAMILY LAW – INTERLOCUTORY STAY APPLICATION – Major Complex Financial Proceedings List – application to stay orders pending the hearing and determination of the application for leave to appeal – application refused. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 part 7.1 Cases cited: Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Aldridge v Keaton [2009] FamCAFC 106
Bienstein v Bienstein (2003) 77 ALJR 908
Blakeley & Jaine (No 3) [2020] FamCAFC 781
Brambles Holdings Ltd v Trade Practices Commission (1979) 40 FLR 364
Burgundy Royale Investments Pty Ltd (1992) 67 ALJR 177
Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246
Commissioner of Taxation v Myer Emporium Ltd (1996) 160 CLR 220
Cornelius v Global Medical Solutions Pty Ltd (2014) 98 ACSR 301
Elspan International Ltd v Aerospatiale Holdings Ltd (1985) 2 NSWLR 685
Alexander v Cambridge Credit Corporation(Receivers Appointed) (1985) 2 NSWLR 685
Gerah Imports Pty Ltd v Duke Group Ltd (In Liq) (1994) 68 ALJR 196
Hussain v Haynoum Developments Pty Ltd [2014] NSWCA 173
In The Will of FB Gilbert (1946) 46 SR (NSW) 318
Jackson v Balen [2009] FamCAFC 131
Jeeves & Jeeves (No 2) [2010] FamCA 284
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681
Medlow & Medlow [2016] FamCAFC 34
Niemann v Electronic Industries Ltd [1978] VR 431
Nikolaidis v Legal Services Commissioner [2005] NSWCA 91
Rahme v Commonwealth Bank of Australia (1994) 68 ALJR 53
Rockdale Beef Pty Ltd v Industrial Relations Commission [2005] NSWCA 369
Thompson v Young [2013] NSWCA 300Division: Division 1 First Instance Number of paragraphs: 27 Date of hearing: 10 March 222 Place: Sydney Counsel for the Applicant: Ms Vohra SC Solicitor for the Applicant: Sayer Jones Counsel for the Respondent: Mr Glick QC Solicitor for the Respondent: Suke and Associates ORDERS
MLC 9192 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KEEVERS
Applicant
AND: MS KEEVERS
Respondent
ORDER MADE BY:
WILSON J
DATE OF ORDER:
15 MARCH 2022
THE COURT ORDERS THAT:
1.The husband’s application to stay paragraphs 3, 4, 5, 6, and 7 of my orders made on 1 February 2022 pending the hearing and determination of the application for leave to appeal is refused.
2.The trial date remains fixed.
3.The application to list a directions hearing not before 1 August 2022 is refused.
4.All parties’ costs of the applications are reserved.
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 Keevers & Keevers is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
By notice of appeal filed on 19 January 2022, the husband sought leave to appeal against orders made by me in February 2022 pursuant to which I dismissed his application for leave to rely on the affidavit of his proposed adversarial witness filed on 22 November 2021.
The trial of this proceeding, a case in the Court’s Major Complex Financial Proceedings List, is fixed to commence on 2 May 2022.
The legal representatives of the husband have been informed by the Court’s appeals staff that the husband’s application for leave to appeal will not be heard prior to the commencement of the trial. No date has been allocated for the hearing of the application for leave to appeal, however.
The husband has applied for orders –
(a)staying the operation of paragraphs 3, 4, 5, 6, and 7 of my orders made on 1 February 2022 pending the hearing and determination of the application for leave to appeal;
(b)vacating the trial date; and
(c)listing a directions hearing on a date to be fixed not before 1 August 2022.
These reasons explain why I dismiss all three applications brought by the husband.
THE ORDERS APPEALED AGAINST ARE INTERLOCUTORY
A substantial debate emerged on 10 March 2022 about the nature of the orders made by me on 1 February 2022 subsequent to my reasons handed down on 22 December 2021. Those orders made were interlocutory in the manner described by the High Court in Carr v Finance Corporation of Australia[1] and in Bienstein v Bienstein[2] in that those orders did not finally determine the rights of the party to this proceeding. My orders of 1 February 2022 were orders on matters of practice and procedure. They were not orders on matters of substantive law. The difference was explained by the High Court in Adam P. Brown Male Fashions Pty Ltd v Philip Morris Inc.[3]
[1] (1981) 147 CLR 246, 253 and 254.
[2] (2003) 77 ALJR 908.
[3] (1981) 148 CLR 170, 176.
Further, the determination of the husband’s application for leave to rely on the evidence of an expert witness, not being a single expert, involved the exercise by me of a discretion reposed in rule 7.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”).
In developing submissions on this application for a stay (among other applications) Ms Vohra, Senior Counsel for the husband, relied on authorities of the Family Court of Australia (as it then was) in relation to a stay application following a trial. Those authorities included Aldridge v Keaton,[4] Jackson v Balen,[5] and my own decision in Blakeley & Jaine (No 3).[6] Each of those decisions concerned stay applications following a trial. That is not the situation here.
[4] [2009] FamCAFC 106.
[5] [2009] FamCAFC 131.
[6] [2020] FamCAFC 781.
Mr Glick QC for the wife submitted that the difference is important because, so he submitted, it is entirely conceivable that at the trial yet to be held in this case, the single expert’s evidence may be –
(a)rejected;
(b)only partially accepted; or
(c)accepted entirely.
He submitted if the single expert’s evidence is rejected or only partially accepted, then the husband may suffer no prejudice and the subject matter of the application for leave to appeal will not be lost or, to use the words of the authorities, rendered “nugatory”.[7]
[7] Gerah Imports Pty Ltd v Duke Group Ltd (In Liq) (1994) 68 ALJR 196, 197 (Dawson J), Rahme v Commonwealth Bank of Australia (1994) 68 ALJR 53.
Mr Glick QC submitted that in an application for leave to appeal from an interlocutory order as distinct from an appeal following a trial, it was essential to consider precisely what is under appeal. He submitted that in reality the husband simply does not like the result of my 22 December 2021 decision.
In debate with Ms Vohra SC, I brought to her attention that interlocutory appeals ahead of trial were unusual for the simple reason that the trial has not been held and the trial may very well take such a course that the point being agitated in the leave application to bring an interlocutory appeal may become otiose. Adopting different words, Cronin J seems to have been of a similar view in Jeeves & Jeeves (No 2),[8] although Cronin J stated that an appellant appealing an interlocutory order encounters a greater degree of difficulty of demonstrating futility if the stay application is refused because a final determination of the parties’ rights had not taken place following a trial.
[8] [2010] FamCA 284 (at [22]).
Of course, an abundance of authority exists concerning principles applicable to the grant of a stay pending appeal following a trial. Those include, the Commissioner of Taxation v Myer Emporium Ltd,[9] Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd,[10] Elspan International Ltd v Aerospatiale Holdings Ltd,[11] and Alexander v Cambridge Credit Corp Limited,[12] to name but a few. Rules of court in relation to those authorities differ to the rules with which I am concerned in this case. To that extent, some of the principles for which those authorities stand are of broader or more general application and, from each, little guidance is to be divined in respect of interlocutory appeals where a stay application is sought.
[9] (1996) 160 CLR 220, 230.
[10](1986) 161 CLR 681.
[11] (1992) 67 ALJR 177.
[12] (1985) 2 NSWLR 685.
Yet, curial intervention by the grant of a stay should not take place lightly as Bryson JA held in Nikolaidis v Legal Services Commissioner.[13] There 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.
[13] [2005] NSWCA 91 (at [18]).
Mr Glick contended that the relevant events of this stay application fell very short of attracting the operation of the second sentence quoted above. He contended that no entitlement, as of right anyway, existed for the husband to rely on an adversarial witness and that the presumption of part 7.1 of the Rules points in the opposite direction by preferring single expert evidence. That is precisely what I did in the exercise of my discretion in my judgment handed down on 22 December 2021.
To my mind, the principles concerning the grant of a stay pending appeal from a final order (at trial) are quite different to the principles concerning the grant of a stay pending the grant of an application for leave to appeal on an interlocutory application. I do not agree that the appeal in this case will be rendered nugatory unless a stay is granted. As has already been observed, the trial is yet to be held. I may not even accept the evidence of the single expert at trial. The s 79 application will go on, whether or not leave to appeal against my 22 December 2021 decision is granted. The subject matter is not lost.
It is also significant that no date for the hearing of the leave to appeal application has been fixed. Ms Vohra SC adopted what I regard as a mutually inconsistent approach of arguing that her client is keen for his s 79 application to be determined expeditiously, consonant with the imperatives of the Major Complex Financial Proceedings List, yet concurrently the husband wants to vacate the trial date and nevertheless prosecute a leave to appeal application when no date for the leave to appeal application has been fixed.
Ms Vohra SC submitted that her client had an arguable case on the application for leave to appeal.
According to Medlow & Medlow,[14] on the hearing of his application for leave to appeal from my interlocutory order, the husband will be required to show two key elements. First, he will be required to demonstrate that my first instance decision is attended by sufficient doubt as to warrant appellate interference. Additionally, the husband when seeking leave to appeal must show that substantial injustice would result if leave to appeal were refused, supposing the decision at first instance were wrong.
[14] [2016] FamCAFC 34.
Mr Glick QC submitted that the husband will be unable to demonstrate those matters.
Having examined the four grounds recorded in the husband’s notice of appeal, I do not share Ms Vohra’s SC enthusiasm about the husband having an arguable case on appeal. Ms Vohra SC was unable to take me to authority binding on me about the metes and bounds of the requirement for the existence of an arguable case. Mr Glick QC submitted that the existence of an arguable case had not been demonstrated on the facts of this application. It cannot be doubted that a substantial body of authority exists in relation to the difficulties that are to be encountered by a party seeking to challenge an interlocutory decision of practice and procedure and in obtaining a stay in support of that challenge. Those authorities include Niemann v Electronic Industries Ltd,[15] In The Will of FB Gilbert,[16] Brambles Holdings Ltd v Trade Practices Commission,[17] Nikolaidis v Legal Services Commissioner,[18] Thompson v Young,[19] Hussain v Haynoum Developments Pty Ltd,[20] Rockdale Beef Pty Ltd v Industrial Relations Commission,[21] and Cornelius v Global Medical Solutions Pty Ltd.[22]
[15] [1978] VR 431.
[16] (1946) 46 SR (NSW) 318, 323.
[17] (1979) 40 FLR 364, 365.
[18] [2005] NSWCA 91.
[19] [2013]NSWCA 300.
[20] [2014] NSWCA 173.
[21] [2005] NSWCA 369.
[22] (2014) 98 ACSR 301.
Mr Glick submitted that –
(a)the husband has failed to demonstrate why the appeal will be rendered nugatory unless a stay is ordered;
(b)if a stay is ordered, significant detriment will flow by reason of the need to update valuation evidence; and
(c)the husband is not bona fide in his stay application because the effect of any such stay order prolongs the time during which this case remains undetermined, wholly antithetical to the intendment of the process adopted in the Major Complex Financial Proceeding List.
In my view, there is real merit in those contentions advanced by Mr Glick QC.
In my view, the husband’s analysis of the relevant criteria to be satisfied for the grant of a stay of an interlocutory order on a matter of practice and procedure was erroneous. It is different to the grant of a stay following trial. I apply the learning of the Court of Appeal of the Supreme Court of New South Wales in refusing to grant the stay application.
THE TRIAL
The trial will proceed as fixed.
DIRECTIONS HEARING IN AUGUST
The trial is likely to be concluded by a date in August, so I decline to list this matter for further directions in August.
I reserve all parties’ costs of these applications, all three of which applications I have dismissed.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 15 March 2022
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