Luna & Luna (No 2)
[2022] FedCFamC1F 17
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
Luna & Luna (No 2) [2022] FedCFamC1F 17
File number(s): BRC 11516 of 2019 Judgment of: HOGAN J Date of judgment: 21 January 2022 Catchwords: FAMILY LAW – PROPERTY – Application for stay of interim orders pending appeal – Where the appeal would be rendered nugatory if a stay were not granted – Where a stay is granted pending appeal. Legislation: Family Law Act 1975 (Cth) Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
Anderson & Senior (Stay Appeal) (2013) FLC 93-556; [2013] FamCAFC 152
Jackson & Balen [2009] FamCAFC 131
Trahn & Long (No. 2) [2008] FamCAFC 194
Division: Division 1 First Instance Number of paragraphs: 5 Date of hearing: 21 January 2022 Place: Brisbane Counsel for the Applicant: Mr Jordan Solicitor for the Applicant: Best Wilson Buckley Family Law Counsel for the Respondent: Mr Brown Solicitor for the Respondent: Alroe Somers & O’Sullivan ORDERS
BRC 11516 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS LUNA
Applicant
AND: MR LUNA
Respondent
ORDER MADE BY:
HOGAN J
DATE OF ORDER:
21 JANUARY 2022
IT IS ORDERED THAT:
1.Orders 3, 6, 7, 8, 9, 10, 11, 12 and 13 of the Orders made on 23 December 2021 are stayed pending the determination of the Appeal filed by the Applicant on 10 January 2022.
2.Pending determination of the Applicant’s Appeal filed on 10 January 2022, any documents produced to the Court by the Applicant in her capacity as the Director of B Pty Ltd pursuant to the subpoena directed to B Pty Ltd (as amended by Order 8 of the Orders made on 23 December 2021) and any documents produced under subpoena filed 31 December 2021 directed to C Bank and to National Australia Bank, shall be sealed such that no party, their legal representative or any officer of the Court shall be at liberty to view, inspect or copy the documents.
3.Costs of and incidental to the appearance today are reserved.
AND IT IS FURTHER ORDERED THAT
4.The final hearing of this matter listed for three (3) days commencing on 7 February 2022 is vacated.
5.The pre-trial Case Management Hearing listed at 9.30 am on 24 January 2022 is vacated.
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 Luna & Luna has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HOGAN J:
On 23 December 2021 I made orders in relation to an application about subpoenas sought to issue to B Proprietary Limited, the National Australia Bank, and B Bank Group. Whilst I delivered reasons orally on that occasion, the settled reasons were not provided to the parties until earlier this week. It is in those circumstances that the content of the Notice of Appeal filed on behalf of the Applicant needs to be considered. It is highly likely, therefore, I anticipate, that an Amended Notice of Appeal will be filed in the proceeding now that the parties have been provided with the settled Reasons earlier this week.
The Applicant by an Application in a Proceeding sealed 17 January 2022 applies for a stay of the operation of the orders made in December 2021 pending the hearing and determination by the court of her appeal against the December 2021 orders. She also seeks – in a sense ancillary to an order for the stay of the operation of the orders – orders to ensure that, should documents have already been provided (by the entities to which I have already referred) to the Court, the Respondent’s legal representative and the Respondent not be permitted to view, inspect, or copy the documents. The ancillary relief sought is, of course, I think clearly reasonable and understandable in the circumstances.
The principles to be applied by a court at first instance in relation to the determination of an application for a stay of the operation of orders pending appeal are well known.[1] Having regard to the applicable principles, it seems to me that the following can be said: there has not been any delay by the Applicant in bringing the Application for a stay of the operation of the orders the subject of the appeal; whilst the Respondent is entitled to the benefit of the judgment and is entitled to presume that it is correct – and is entitled, therefore, to proceed in a sense to enforce the orders I made in December 2021 – the fact that the appeal would, I think, clearly, be rendered nugatory in this particular case if a stay is not granted is a substantial factor to which I have really, given determinative weight in the decision I have arrived at to accede to the application for a stay of the operation of the December 2021 orders. I accept the submission made by Mr Jordan on behalf of the Applicant that the Appeal is lodged in a bona fide manner and should be regarded as bona fide. I do not have any doubt in relation to that.
[1] See, for example: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106; Anderson & Senior (Stay Appeal) (2013) FLC 93-556; Trahn & Long (No. 2) [2008] FamCAFC 194; Jackson & Balen [2009] FamCAFC 131.
I accept – to the extent that it is necessary to do so, given the requirement only to undertake some preliminary assessment of the strength of an appeal to consider whether an appellant has an arguable case on appeal – the content of Mr Jordan’s submissions in relation to that issue; there is no evidence before me, understandably perhaps, to assist me to ascertain how long it will take before the appeal – commenced only very recently – can be heard. No submission has been made by Mr Brown on behalf of the Respondent to suggest that there is any particular prejudice to the Respondent – other than that, of course, associated with a delay in the ability to access the documents if the appeal is unsuccessful. However, of course, if the appeal is successful then, as I have already said, failing to grant a stay would mean that the appeal would be rendered nugatory: that clearly, as I have said, in this case, is, I think, the determinative factor in the decision to accede to the Application brought by the Applicant.
For those short reasons delivered this morning orally, I will make orders in terms of paragraph 1 in the Application in a Proceeding sealed on 17 January 2022 and paragraph 2, save for the fact that, when the orders issue, they will also deal with the position of the National Australia Bank and C Bank. So those two entities will be included in Order 2. I will make an order in terms of paragraph 7, namely, reserving the costs of the parties.
I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan. Associate:
Dated: 27 January 2022
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