KNOWLES & GREEN (SECURITY FOR COSTS)
[2010] FamCAFC 31
•5 March 2010
FAMILY COURT OF AUSTRALIA
| KNOWLES & GREEN (SECURITY FOR COSTS) | [2010] FamCAFC 31 |
| FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – DIMISSAL – Where the mother sought the father’s appeals be dismissed – Where the dismissal of the appeals would work an injustice – applications dismissed. FAMILY LAW - APPEAL – APPLCIATION IN AN APPEAL – SECURITY FOR COSTS – Where the mother sought security for costs of the appeals – Where the husband conceded that he could provide security of $10,000.00 in a relatively short period of time – Where there is some doubt about the father’s capacity to meet any costs order in a reasonable period – Where appeal not hopeless but prospects of success not overwhelming – Security for costs in the amount of $10,000.00 not unreasonable – Father ordered to pay security for costs of the appeals in the amount of $10,000.00. |
| Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 CDJ v VAJ (1998) 197 CLR 172 Halsbury & Halsbury [2009] FamCAFC 170 Jones & Jones (2001) FLC 93-080 Luadaka & Luadaka (1998) FLC 92-830 O’Rourke v P & B Corporation Pty Ltd [2008] WASC 36(S) Queensland v JL Holdings (1997) 189 CLR 146 R & R and Ors [2006] FamCA 808 |
| Family Law Act 1975 (Cth) – s 117 Family Law Rules 2004 – Chapter 22, r 22.22(2)(a) |
| APPLICANT: | Ms Knowles |
| RESPONDENT: | Mr Green |
| FILE NUMBER: | MLC | 1172 | of | 2007 |
| APPEAL NUMBER: | SA SA | 31 68 | of of | 2009 2009 |
| DATE DELIVERED: | 5 March 2010 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Coleman, Boland & Austin JJ |
| HEARING DATE: | 1 March 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 15 April 2009; 25 June 2009 |
| LOWER COURT MNC: | [2009] FamCA 271; [2009] FamCA 541 |
REPRESENTATION
| ADVOCATE FOR THE APPLICANT: | Ms Knowles appeared in person |
| ADVOCATE FOR THE RESPONDENT: | Mr Green appeared in Person |
Orders
That appeal Nos SA 31 of 2009 and SA 68 of 2009 be consolidated and listed for hearing sequentially.
The father pay to the Registry Manager, Melbourne Registry of the Family Court of Australia on or before 31 March 2010 the sum of $10,000.00 by way of security for costs of appeals SA 31 of 2009 and SA 68 of 2009.
Paragraph 1 of the mother’s application filed 3 December 2009 is dismissed.
Paragraph 1 of the mother’s application filed 18 February 2010 is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Knowles & Green (Security 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 MELBOURNE |
Appeal Number: SA 31 of 2009; SA 68 of 2009
File Number: MLC 1172 of 2007
| Ms Knowles |
Applicant
And
| Mr Green |
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Knowles filed an Application in an Appeal on 3 December 2009 (SA 31 of 2009) in which she sought orders for the summary dismissal of an appeal filed by Mr Green against parenting orders made by Mushin J on 15 April 2009. In the event we did not accede to her summary dismissal application, Ms Knowles (who we will refer to in these reasons as “the mother”) sought orders that Mr Green (who, also for convenience, we will refer to as “the father”) pay security for the costs of the appeal in the sum of $25,000.00.
On 18 February 2010 the mother filed another application (SA 68 of 2009) in which she sought orders in broadly identical terms in respect of an appeal filed by the father against costs orders made by Mushin J on 25 June 2009. In that application she sought security in the sum of $5,000.00. We heard both of the mother’s applications on 1 March 2010. At that time both parties agreed it would be practical for the substantive appeal and the costs appeal to be consolidated and for the costs appeal to be listed immediately following the substantive appeal. In those circumstances, the mother modified her claim for security to $25,000.00 in respect of both appeals.
The parties are both practising legal practitioners in the State of Victoria. They each appeared in person before us. The mother relied on her two affidavits in support of her applications, and comprehensive written submissions as well as brief oral submissions before us. The father filed in court two affidavits affirmed by him on 28 February 2010 and 1 March 2010. We will refer to the affidavit containing 23 paragraphs as the father’s long affidavit. In court he relied on a written outline of argument, a copy of which was provided to us.
Background
It is unnecessary for present purposes that we refer extensively to any background relevant to the parties. The following matters appear in the trial Judge’s reasons and are uncontroversial.
The father was born in February 1964 and the mother was born in May 1968. The parties commenced cohabitation in May 1995, and they married in July 1996. The parties have two children. The elder child, a boy, X was born in June 2000, and their younger child, a girl, Y was born in July 2003. The circumstances of Y’s conception are in dispute. The parties separated in January 2002 prior to her birth.
X was diagnosed by a Dr S, a neurologist, when he was approximately six months old as suffering hemiplegic cerebral palsy.
Proceedings were first commenced in the Court by the mother in about March 2002. In June 2002 consent orders were made finalising property and parenting issues. However, in June 2006 the mother commenced further parenting proceedings. Those proceedings were settled with further consent orders being made on 10 August 2006. The orders provided for the children to live with the mother nine nights per fortnight, and the balance of nights they were in the father’s care. However, the father spent other significant periods of time with the children each fortnight.
In about February 2007 the father commenced residing with Ms R, and they moved from suburban Melbourne to V approximately 58 km from the Melbourne central business district.
On 1 May 2008 the father filed an application for final parenting orders. The father’s application was heard over 16 days commencing on 15 October 2008. His Honour published reasons and made parenting orders, the subject of the father’s substantive appeal on 15 April 2009. The trial Judge’s orders provide, in broad terms, for the mother to have sole parental responsibility for X’s education, X’s and Y’s choice of school, and X’s health, and otherwise that the parents share parental responsibility for both children. The children are to live with the mother and spend time with the father each alternate weekend as well as from the conclusion of school until 7.00 pm each alternate Monday, together with time during school holiday periods, including the whole of the second term school holidays and on other special occasions. His Honour injuncted the father from discussing X’s weight with him, or his sister, or in their hearing, and from weighing X.
On 25 June 2009 Mushin J made orders that the father pay the mother’s costs and those of the independent children’s lawyer in respect of the substantive proceedings as agreed, and failing agreement as assessed under the Family Law Rules 2004 (“the rules”).
The father filed an appeal against the costs orders on 23 July 2009.
The applications for summary dismissal
The mother relied essentially on three matters in support of her application for summary dismissal. First, she submitted that the father had not pursued his appeal with reasonable diligence. In support of this submission the mother asserted the father had not filed his complete appeal books by the due date, nor had he filed his summary of argument within the time ordered by the Appeal Registrar. It is not in dispute that the father filed his appeal book without transcript within the extended time ordered by the Appeal Registrar, and as she directed. The transcript was subsequently filed on 19 October 2009. The mother also referred to the father failing to file his summary of argument (on the basis the appeal was likely to be listed in the October sittings of the Full Court).
The mother’s second complaint was that the father’s summary of argument in respect of the substantive appeal, which is approximately 40 pages in length, exceeds the provisions in the rules, and its content does not comply with the rules.
The mother’s final complaint was directed to the father’s Notice of Appeal in the substantive appeal which she submitted was defective because the father had not set out the orders he sought in the event the appeal was allowed.
The father opposed the application for summary dismissal. He asserted that the mother did not raise any complaint which disclosed the delay in filing the appeal book caused prejudice to her. He relied on the statements of principle enunciated in the judgment of Bowen LJ in Cropper v Smith (1884) 26 Ch D 700, and referred to by the High Court in Queensland v JL Holdings (1997) 189 CLR 146.
Discussion
It is not in dispute that the appeal books in both the substantive parenting appeal and the costs appeal have been filed, as have both parties’ summaries of argument. No documents have been filed by the independent children’s lawyer who notified the Court that legal aid had not been extended to fund participation in the appeal.
It is convenient we deal with the mother’s complaints in reverse order. We accept the Notice of Appeal, as found in the appeal books does not include any details of orders sought by the father in the event the appeal succeeds. We observe that before us the mother did not demur from the proposition that this fact was not likely to cause any prejudice to her, and the most likely prospect if the appeal succeeded was that there would be a re-trial before a judge other than Mushin J.
We are unable to accept the mother’s arguments that the appeal should be dismissed by reason of the filing of the appeal book without the transcript. The father complied with the directions given by the Appeal Registrar to file the appeal book by 28 August 2009 without transcript, if transcript was not available, and to thereafter file the transcript. That has occurred and the appeal is ready for hearing.
We accept that it is important an appellant prosecute an appeal diligently having regard to the strain imposed on the respondent to an appeal, and in fairness to other litigants waiting to have their appeals heard and determined. Another important consideration is the proper use of resources of the Court to hear and determine appeals, rather than those resources being expended on determination of unnecessary applications in appeals. But at the end of the day the rules must serve the interests of justice.
We also appreciate that the father’s summary of argument far exceeds the provisions in rules, and does not appear to comply with the rules in that it does not set out each ground of appeal, and for each ground of appeal, a statement of the argument setting out the point of law or fact and the authority relied on (see r 22.22(2)(a)). The length of the summary may be explicable by the very large number of grounds which the father agitates in his Notice of Appeal, many of which overlap. The father submitted, although a qualified legal practitioner, he was unfamiliar with the jurisdiction. It appears he will appear on his own behalf at the hearing of the appeal. The father’s reliance on his unfamiliarity with the rules is no excuse for non-compliance. Chapter 22 of the rules is clear as to the requirements for an appellant in the conduct of his or her appeal. Notwithstanding these observations, as the father will be self-represented at the hearing of the appeal if it proceeds, it is likely that his oral argument may be more confined than may otherwise be the case, and the Full Court hearing his appeal can have reference to his detailed summary of argument thus reducing court time and expense to the mother.
In Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 the plurality in the High Court disapproved the ratio in Queensland v JL Holdings insofar as it dealt with the intersection of principles relevant to amendment of pleadings to enable justice to be attained, and the imperatives of case management for the orderly and proper conduct of litigation. In dealing with the purpose of r 21 of the Court Procedures Rules 2006, which rule is directed to the just but timely and cost effective resolution of civil proceedings, and the right of a party to amend his or her pleading their Honours observed at paragraphs 112 and 113:
112A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
113In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings. (original emphasis, footnote omitted)
In this case no serious delay or prejudice has been caused to the mother by failure of the father to strictly comply with the rules. His appeal has not been heard on its merits. Although we will discuss those merits, albeit briefly, in the context of considering the mother’s security application, we are satisfied that any prejudice to him in not allowing the appeal to proceed would substantially outweigh any prejudice to the mother, and cause an injustice. Accordingly we are satisfied the appeals should not be summarily dismissed.
The security applications
Before we commence our discussion of the mother’s application for security for costs of the appeals, it is important that we record the mother did not provide us with any schedule of her anticipated costs. However, during the course of oral argument, she advised us that she intended to be legally represented at the hearing of the appeal and that she proposed to brief counsel. She advised us that she based counsel’s fees on the daily rate she had been charged for the hearing ($3,750.00). She submitted, given the number of grounds of appeal (originally 138 grounds in the substantive appeal and 28 grounds in the costs appeal) and the sheer volume of material in the appeal book, counsel would require one day’s reading time, and one day’s preparation. She agreed with us that the consolidated appeals could be heard in one day.
As we have earlier noted, the father relied on two affidavits, portions of which we will shortly refer to in greater detail. While resisting the applications for security, he conceded that, in the event we ordered security he could, within a reasonable short period of time, pay up to $10,000.00.
The gravamen of the mother’s application was her assertion that the father would be unlikely to pay any costs awarded against him in the event his appeal is dismissed. The bases of the mother’s complaint are:
·the insignificant prospect of success of the appeals;
·the father’s lack of taxable income as disclosed in his taxation returns and recorded by the trial Judge;
·the father’s failure to pay arrears of child support pursuant to a child support agreement (the father conceded he was approximately $5,000.00 in arrears); and
·that the father has not paid the costs ordered by Mushin J in respect of the substantive proceedings (we were advised the father had unsuccessfully sought a stay of Mushin J’s consent orders).
Relevant Legal Principles
The relevant principles applicable to an application for security for costs are well known. In Luadaka & Luadaka (1998) FLC 92-830 the Full Court set out the relevant principles as follows:
38. Section 117(1) provides that, subject to sub-section (2), each party to proceedings under the Act shall bear his or her own costs. Section 117(2) provides that if in proceedings under the Act the court is of the opinion that there are circumstances that justify it in doing so the court may, subject to sub-section (2A), make such order for security for costs as the court considers just. Section 117(2A) provides that in considering what order should be made the court shall have regard to the matters set out in paragraphs (a) to (g) inclusive. Section 117(2A)(g) provides that the court shall have regard to such other matters as the court considers relevant.
…
61. In our opinion, when dealing with an application for security for costs the general rule provided for in s 117(1) applies, namely that subject to s 117(2) each party to proceedings shall bear his or her own costs. However, if the court is satisfied that there are circumstances that would justify an order then the court may, subject to s 117(2A), make such order for security for costs as the court considers just. It is not necessary to establish that there are special circumstances. However, it is necessary to establish that there are justifying circumstances. The decision to order security for costs is discretionary, both as to whether to order security, and as to the amount to be secured.
62. The purpose of an order for security is to secure justice between the parties by ensuring that an unsuccessful party does not occasion injustice to the other. In considering whether or not to make an order, apart from those referred to in s.117(2A), matters which may be relevant include the following:
62.1It may be relevant to take into account the means of an applicant to satisfy an order for costs if he or she is unsuccessful. Ordinarily the means of the applicant is not alone sufficient to justify an order for costs because of the rule that poverty should be no bar to justice. This is reinforced by s.117 (1). However, the financial circumstances of the applicant do not prevent an order being made if there are other grounds which justify an order. Financial weakness may be relevant, for example, if the applicant is a company. In relation to the means of the respondent, who is the applicant for security, it was held by Goldstein J in Alexander and Alexander (supra) and Gee J in B and B (supra) that the question is whether or not the respondent is able to pay his or her costs. Section 117(2A)(a) requires consideration of the financial circumstances of both parties. However, we do not accept that it will only be in cases where the applicant for security does not have the means to meet his or her costs that an order would be made. In appropriate circumstances an order may be made even if the applicant for security has the means to pay his or her costs.
62.2The prospects of success is a relevant matter to take into consideration: Parkinson & Co Ltd v Triplan Pty Ltd (supra). However, ordinarily the court will not undertake a detailed assessment of the likelihood of the applicant’s success unless it can be demonstrated that there is a high probability of success or failure: Porzelack KGv Porzelack (UK) Ltd [1987] 1 WLR 420; Appleglen Pty Ltdv Mainzeal Corporation Pty Ltd (1988) 79 ALR 634; Equity Access LtdvWestpac Banking Corporation (1989) ATPR ¶40-972. This is because of the lack of material at the time the application is dealt with. However, such an assessment may be possible in circumstances where, as in this case, affidavits have been filed in which the case sought to be made out is set out.
62.3It is a relevant consideration whether the applicant’s claim is made bona fide, whether it is genuine and not trivial, vexatious or a sham: Parkinson & Co Ltd v Triplan Pty Ltd (supra); Lynnebry Pty Ltd v Farquhar Enterprises Pty Ltd (1977) 3 ACLR 133; J & M O’Brien Enterprises Pty Ltd v Shell Company of Australia Ltd (1983) 7 ACLR 790.
62.4It may be relevant to consider whether or not an order for costs would be oppressive or stifle the litigation. In Mantaray Pty Ltd v Brookfield Breeding Co Pty Ltd (1990) 8 ACLC 304 Byrne J said at 306:
‘A factor in deciding whether security should be required is that the order may well mean that the action cannot proceed. That prospect does not require refusal of the application but it is often a significant matter.’
See also Rosenfield Nominees Pty Ltd v Bain & Co (1988) 14 ACLR 467 and Sydmar Pty Ltd v Statewise Developments Pty Ltd (1987) 5 ACLC 480.
62.5It may be relevant to consider whether or not the litigation may involve a matter of public importance: Equity Access Ltd v Westpac Banking Corporation (supra); Jodast Pty LtdvA & J Blattner Pty Ltd (1991) 104 ALR 248. In Quick on Costs at [ 4.9440] it is said that this will militate against the making of an order.
62.6It may be relevant to consider whether or not there has been delay in bringing the application. An application may be refused if there is delay in making the application and prejudice is caused to the respondent to the application: Buckley v Bennell Design & Constructions Pty Ltd (1974) 1 ACLR 301 and Loreva Pty Ltd v Cefa Associated Agencies Pty Ltd (1982) 7 ACLR 164.
62.7Other relevant matters may include any difficulties of enforcing an order for costs and the amount of costs to be incurred.
The applicability of these principles to appeals was confirmed by the Full Court in Jones & Jones (2001) FLC 93-080 where the majority of the Full Court (Ellis and Mullane JJ with whom Kay J largely agreed) said at 88,376-88,377:
20. There is no doubt that the wife is impecunious, that she may well be unable to proceed with the appeal if she is ordered to provide security and will be unable to meet an adverse order for costs in the appeal. The prospect, however, of the husband being left without a remedy in respect of a costs order if the appeal is dismissed is significant.
21. It has long been recognised that, as a general rule and in the exercise of an unfettered discretion, mere impecuniosity of a litigant who is a natural person, will not of itself be a basis for ordering that person to provide security. There is, however, an exception to that general rule, namely in the case of appeals. See Cowell v Taylor (1885) 31 Ch D 34 at 38, J & M O'Brien Enterprises Pty Ltd v Shell Co of Australia Ltd (No 2) (1983) 70 FLR 261 at 264, Ciappina v Ciappina (1983) 70 FLR 287 at 290 and Paton v Campbell Capital Ltd (unreported, Federal Court of Australia, 1 July 1993).
22. The fact that the wife would be unable to pay the costs awarded against her, if her appeal was dismissed, is, in our view, a significant factor to take into account in considering whether to exercise the discretion to order security in favour of the husband, but it is not the only or deciding factor.
The provisions of the Family Law Act 1975 (Cth) (“the Act”) dealing with costs and security for costs are found in s 117. So far as that provision is relevant to these proceedings we now set out s 117(1) to (5) of the Act:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A) In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
(3) To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
(4) However, in proceedings in which an independent children’s lawyer for a child has been appointed, if:
(a) a party to the proceedings has received legal aid in respect of the proceedings; or
(b) the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children’s lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children’s lawyer.
(5) In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney‑General.
We propose to discuss the relevant issues in the mother’s applications by reference to the factors identified in Luadaka & Luadaka. In so doing we will focus our attention on the most significant factor in this case – the prospects of success of the appeals.
The financial circumstances of the parties
In his costs judgment the trial Judge referred to the father’s financial position. The father does not assert in his costs appeal any error by the trial Judge in his recitation of the father’s financial position. The trial Judge found the father had no taxable income in the years ending 30 June 2005 and 30 June 2007 and a very modest taxable income of $13,364.00 in the year ended 30 June 2006. The father conceded he had a debt to the mother of about $5,000.00 (it appears for arrears of child support) (father’s long affidavit, paragraph 13).
The father does not provide any details of his capital position. Although he deposed to income he expected to receive for legal work done, before us, he conceded the sum of $100,000.00 referred to in paragraph 17 of his long affidavit referred to $60,000.00 for fees rendered by him as counsel three years ago and $40,000.00 not yet billed to the same solicitors. Reliance on such fees being received in the short term must be inherently unlikely.
The mother’s material was silent as to her financial position save and except her liability for school fees, and her estimation of costs incurred by her in the substantive proceedings.
On the evidence before us we can only conclude that while the husband has the capacity to generate income from his legal practice he is presently unable to pay his outstanding debt to the mother, and there must be some doubt about his capacity to meet a costs order in a reasonable period if his appeal is unsuccessful.
The bona fides of the father
There is nothing before us that would suggest the father’s appeal is not brought bona fide. We note the trial Judge, while critical of a number of aspects of the father’s parenting, found the father to be a “person of great passion, particularly with regard to the fundamental issues of [X’s] health and schooling”.
This factor is not relevant to our decision.
The merits of the appeals
It is unnecessary we say anything of significance about the costs appeal. The fate of the costs appeal may follow the success or failure of the substantive appeal. Insofar as the substantive appeal is concerned, we have already recorded that the father relies on approximately 138 grounds of appeal.
A number of the grounds assert a denial of natural justice to the father in the conduct of the case. We note that the father was represented by experienced counsel, including senior counsel, except for the last five days of the 16 day trial. We were not directed by the father, in his oral submissions, to any application made by his counsel when he was represented where the trial Judge was asked to disqualify himself but we accept his written submissions refer to such an application being made by his senior counsel at trial. Our examination of the transcript discloses that although senior counsel made such an application, and his Honour delivered reasons for judgment, no appeal was lodged against his Honour’s refusal and the case continued. We also accept that consideration of some of the grounds asserting a lack of natural justice will require a detailed examination of transcript. We were not, however, directed to any particular parts of the appeal book by the father to support the strength of his appeal, particularly the natural justice challenges.
The majority of the father’s grounds attack the weight afforded by the trial Judge to matters, including matters of the “uncontested and unchallenged” evidence of X’s prep teacher and assertions that his Honour failed to take into account relevant matters particularly matters relating to X’s needs for additional education assistance. The father seeks to challenge his Honour’s findings about the credibility of witnesses.
Our examination of the appeal grounds demonstrates that the majority of the grounds are one which go to the exercise of discretion by the trial Judge. As the mother pointed out in her written submissions the burden on an appellant in such a challenge is a formidable one. The rationale for the caution in appellate interference with a discretionary judgment, particularly in a parenting matter is cogently explained by Kirby J in CDJ v VAJ (1998) 197 CLR 172 at paragraph 186.
It is not our role in this application to meticulously examine the father’s grounds of appeal. Our broad assessment is that, while we could not say the appeal was utterly hopeless, the prospects of success from the material to which we have been directed are not overwhelming. This is a most significant matter to be taken into account in the exercise of our discretion under s 117 of the Act.
Will an order for security stifle the litigation?
Before us, the father conceded that he could raise up to $10,000.00 within a relatively short period of time. For reasons we will shortly elaborate about the quantum of security we would be prepared to order, we are satisfied an order for security would not, on the father’s on admission, stifle him proceeding with his appeal.
Costs of the appeals
We have already referred in some detail to the lack of evidence before us as to likely costs of the appeal. However we note in R & R and Ors [2006] FamCA 808 the Full Court (Finn, May and Boland JJ) at paragraph 37 referred to the fact that when fixing sums for security for the costs of an appeal, the Court generally did so “broadly on the basis of the fees of a solicitor and Junior Counsel for a hearing of one day or less”. In the application then before the Full Court their Honours observed that the appeal books comprised some 25 volumes, and the multiple parties to the appeal had agreed the appeal would take three days. Their Honours went on to make an order which might be described as “outside the normal range” of security orders commonly made by the Full Court.
We would not wish to turn an application for security for costs into “satellite” litigation, or as Martin CJ described in O’Rourke v P & B Corporation Pty Ltd [2008] WASC 36(S) “parasitic litigation”, with parties required to submit precise costings in accordance with the rules, albeit a schedule may be appropriate in cases where significant sums are sought.
We are also cognisant of the remarks of the Full Court in Halsbury & Halsbury [2009] FamCAFC 170 about the costs and time involved in prosecuting applications for security for costs which frequently could have been better employed in having the appeal heard and determined. That said, we think from the sheer number of grounds of appeal, the large volume of transcript and other material to be digested by counsel briefed for the mother, that the sum of $10,000.00 for security for costs is not an unreasonable estimate.
Conclusions
On balance, having regard to the factors we have discussed above, and in particular having regard to the likely prospects of success of the appeal, we consider that the father should pay the sum of $10,000.00 by way of security for costs of the substantive appeal and the costs appeal.
I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date:
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