Lee and Ryder

[2009] FamCA 695

FAMILY COURT OF AUSTRALIA

LEE & RYDER [2009] FamCA 695

FAMILY LAW – ORDERS – stay – application by other party seeking a stay of orders requiring production of documents pending determination of an appeal – where the proceedings have been ongoing for many years – where the re-hearing of the matter following a successful appeal was listed to commence shortly – whether the refusal of a stay renders a successful appeal nugatory – comparison of the hardship to the appellant and the respondent if a stay is granted or refused – consideration of the merits of the appeal – orders stayed pending determination of the appeal – order that documents be preserved pending finalisation of the appeal

Family Law Rules 2004 (Cth)
APPLICANT:	Ms A Lee

RESPONDENT: Ms Ryder

FILE NUMBER: ADF 5495 of 1989

DATE DELIVERED: 30 JUNE 2009

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

EX TEMPORE REASONS OF: BURR J

HEARING DATE: 30 JUNE 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT: MR NICHOLAS SWAN

SOLICITOR FOR THE APPLICANT: SWAN LAWYERS

COUNSEL FOR THE RESPONDENT: MRS VANESSA LINDSAY

SOLICITOR FOR THE RESPONDENT: DAVID FIDLER & CO

Orders

1. The Orders made by the Honourable Justice Burr on 17 June 2009 be stayed pending determination of the Application for Leave to Appeal filed on 24 June 2009 on behalf of Ms A and S Company Pty Ltd and determination of the Appeal in the event that leave is granted.

2. Any documents currently in the possession of Ms A either in her personal capacity or in her capacity as Managing Director of S Company Pty Ltd not be destroyed and are to be preserved pending finalization of the Appeal process.

3. The trial dates of 8, 15, 16 and 17 July 2009 allocated to these proceedings be vacated.

4. All costs applications relating to the subpoenas directed to Ms A and the Managing Director of S Company Pty Ltd be reserved for further consideration on a date and at a time to be fixed by the Court after the finalization of the Appeal process.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADF 5495  of 1989

MS A

Applicant

And

MS RYDER

Respondent

REASONS FOR JUDGMENT

1. I have before me today the Application in a Case filed on 23 June 2009 by Ms A Lee (“Ms A”) both in her capacity as a private individual and as the Managing Director of S Company Pty Ltd in which she seeks an Order for stay of the Orders that I made in these proceedings on 17 June 2009.  I note that an Application for Leave to Appeal was filed with the Regional Appeals Registrar on 24 June 2009. 

2. Under Rule 22.12 of the Family Law Rules which deals with applications for stay, it indicates quite clearly that the filing of a Notice of Appeal does not stay the operation and enforcement of the order appealed from and hence the application now before the Court. That provision reflects what was in any event a long standing principle of common law in that a successful litigant should not be deprived of the “fruits of litigation”.

3. There are a number of relevant considerations to which the Court must have regard on any application for stay.  In this Court much of the authorities in relation to stay orders relate to children’s issues and parenting issues.  However a few common principles emerge for my consideration when dealing with this particular application for stay.

4. One which is of relevance from the authorities is whether or not there is likely to be any delay as to the appeal.  It is inevitable that the Application for Leave to Appeal in this case will not be heard and determined prior to the dates that I have already set for the trial of these proceedings, being a commencement on 8 July 2009 and continuation / conclusion on 15, 16 and 17 July 2009.

5. Another fact which I need consider is whether a refusal of the stay renders a successful appeal nugatory or will make it impossible or impractical to restore the situation presently existing and it is quite clearly on that ground that the application for stay must succeed.

6. The Orders that I made on 17 June 2009 and which required compliance by last Friday were as to the provision of a substantial raft of financial information from Ms A personally and from the company of which she is Managing Director.   It is as to the provision of much of that information that Ms A seeks leave to appeal.  Thus if the information is provided prior to the determination of the appeal, the situation is indeed rendered nugatory and it would be impossible to restore the situation to that which presently exists. 

7. I need also consider the hardship to the appellant if the stay is refused compared to the hardship to the respondent if the stay is granted.  The respondent to the Application for Leave to Appeal, namely the applicant wife in these proceedings for orders in relation to child support, has had to wait a very long time indeed for the determination of her application.  Through no fault of her own the matter went to trial and final determination which was then the subject of a successful appeal by the respondent husband.  The matter was sent back for re-hearing before a different Judge, namely me.  I am, and have been for some time, in the process of endeavouring to ready the matter for that re-hearing.  Thus the hardship to the respondent to the Application for Leave to Appeal has to be acknowledged.

8. However balanced against this is the hardship to the appellant which is that all of the matters about which she complains as unfairly arising from the Orders made by me on 17 June 2009 will have already escaped her control and there would be no opportunity to retrieve the position as presently stands.  Thus, on balance, given that the Court will ultimately have the opportunity to address the concerns of the respondent mother, it is in my view necessary to answer that particular question in favour of the appellant. 

9. Another matter which the Court needs to consider is the grounds of the appeal and the merits of the appeal and in that process somehow or other endeavour to assess the prospects of success of the appeal.  This, of course, can be particularly difficult as Judges are effectively required to consider the merits of their own decision and hence it may be human nature to find it difficult to acknowledge that one is ever wrong.  Certainly given the breadth of the decision that I made on this occasion and the fact that there is arguably a case that not all of the information that I ordered be provided should be provided, I acknowledge that there is the possibility of some prospect of success on the appeal. 

10. The other matters that I need consider in relation to a stay application are, in my view, of little value in determining this application, one being the bona fides of the applicant.  I am satisfied that she brings this application and indeed her Leave to Appeal on proper grounds.  It needs to be determined whether or not the decision I made on 17 June 2009 amounted to a proper exercise of the very broad discretion that rests in me.

11. Another matter that I need consider is the length of time it is expected to take for the appeal to be heard.  I do not have any information as to how long it will be before the Full Court can deal with the matter.   However, I note that it is not a matter that would likely require particularly lengthy argument and it may well be that it could be disposed of on a relatively prompt basis. 

12. However, in any event the overriding consideration that must, in my view, dictate the decision I make in this matter is the issue as to whether or not any refusal of a stay would render any successful appeal nugatory.  It is on that ground at least that the application must be granted and I therefore grant the application.

I certify that the preceding twelve (12) paragraphs are a true copy of the Ex tempore reasons for judgment of the Honourable Justice Burr

Associate: 

Date:  30 June 2009