Matthews and Norris (No 2)

[2018] FamCAFC 138

FAMILY COURT OF AUSTRALIA

MATTHEWS & NORRIS (NO. 2) [2018] FamCAFC 138

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Where the application is brought bona fide – Where the mother is an undischarged bankrupt in Australia – Where it cannot be found that an order for security for costs would stifle the appeal – Where the grounds of appeal as presented demonstrate an extremely poor prospect of success – Security for costs ordered.

Family Law Act 1975 (Cth)

Norris & Mathews [2017] FamCAFC 233

APPLICANT: Mr Matthews

RESPONDENT: Ms Norris

FILE NUMBER: NCC 2226 of 2015

APPEAL NUMBER: EA 54 of 2018

DATE DELIVERED: 26 July 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 25 July 2018

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 9 May 2018

LOWER COURT MNC: [2018] FamCA 341

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Carty

SOLICITOR FOR THE APPELLANT: Oliver Campbell Heslop Solicitors

THE RESPONDENT: In person

Orders

1. Ms Norris pay to the trust account of Oliver Campbell Heslop Solicitors $15,000 as security for any costs ordered in the appeal prior to the appellant taking any further step in the matter.

2. In the event that security as provided in Order 1 herein is not paid within 30 days of the date of this order then the appeal be stayed pending compliance with the order.

3. The costs for the application for security for costs are reserved to the appeal hearing, however, in the event that the appeal is deemed abandoned or is dismissed, the applicant (Mr Matthews) has 28 days within which to relist his application for costs for determination.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Matthews & Norris has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 54 of 2018
File Number: NCC 2226 of 2015

Mr Matthews

Applicant

And

Ms Norris

Respondent

REASONS FOR JUDGMENT

1. This is an application by Mr Matthews (“the applicant”) for security for costs in the amount of $15,000 to be paid by Ms Norris (“the respondent”).  The application is brought in relation to an appeal (EA54 of 2018) against the dismissal of an application for contempt brought against the applicant.  The respondent resists the application and, in the event that the court is satisfied that an order for security for costs should be made, the respondent contends that the amount sought is excessive.

2. The parties are well versed in appellate litigation; this being the fourth notice of appeal filed by the respondent since January 2007.  Two of those appeals were discontinued and a third is deemed abandoned.  Furthermore, an order for security for costs in the amount of $20,000 was made against the respondent in the third appeal with which she failed to comply.  In any event, the relevant background history and governing law in applications such as this are set out in the reasons for judgment published by Ainslie-Wallace J on the earlier application for security for costs (Norris and Mathews [2017] FamCAFC 233).

3. Turning then to the bona fides of the claim for security of costs, the applicant established that in the preceding year and a half the respondent commenced four separate applications for contempt and two contravention applications, the latter of which contained 57 counts.  Other than the subject application, the others were dismissed as a consequence of the non-appearance of the respondent.  The subject application was summarily dismissed.  

4. As she did before Ainslie-Wallace J, the respondent denied knowledge and, indeed the existence, of an order for costs made against her which remains outstanding.  The denial lacks credibility and the order having been perfected and entered at a time when the respondent was represented, she has constructive notice of it.  Indeed, as the respondent said in her affidavit, the parties have access to the Court’s portal, which as counsel for the applicant observed, means that the respondent was able to view the order.  Moreover, reference only need be made of [31] of the reasons given by Ainslie-Wallace J to demonstrate the lack of integrity to the respondent’s claim concerning the outstanding cost order.  It is a simple vignette which demonstrates why the applicant has good reason to be concerned that the respondent would not readily comply with an order for costs against her in the appeal and why it is necessary to approach her uncorroborated evidence on contentious matters and submissions with some caution.

5. It is accepted that the application is brought bona fide.

6. The next question to be answered is whether an order for security for costs would stifle the litigation.

7. It is common ground that the respondent is an undischarged bankrupt and her assets in Australia have vested in her trustee in bankruptcy.  Fortunately, on the sale of a property in the name of the respondent, the trustee secured a better sale price than was anticipated.  According to the respondent, the effect of this is that the trustee has been able to satisfy her creditors and has filed an application to annul the bankruptcy.  That application is listed for hearing within the next four weeks or so, at which point the respondent expects to receive the surplus.  The evidence does not establish the likely surplus but the implication is that it would result in material a improvement in the respondent’s financial circumstances.

8. Of course, consideration must also be given to any assets the respondent may have in New Zealand.  To this end, the applicant presented credible evidence that the respondent transferred some $128,000 to her mother in New Zealand, and that she has possession and control of a horse van presently listed for sale for $50,000.  In oral addresses, but not under oath, the respondent explained why the eventual sale proceeds of the vehicle and funds transferred to her mother were not her property.  At this stage, the evidence presented in support of the contention that it is, is more persuasive than the submissions that it is not.

9. I am not persuaded that an order for security for costs in the amount sought would stifle the litigation.

10. Turing then to prospects of success on the appeal, it is the respondent’s contention that this is an appeal of importance which has a very high chance of success.  The grounds of appeal raised against the primary judge’s decision to dismiss the contempt application suggests the contrary.  That is, the grounds of appeal as presented should be evaluated as demonstrating extremely poor prospects of success.  Reference need only be made as to the particulars of contempt as set out in [7] of the trial reasons (which findings are not challenged) to appreciate that his Honour’s findings at [13] were soundly based.  At [13] his Honour said:

    None of the [respondent]’s allegations against either the [applicant] or his lawyers enjoy any reasonable likelihood – or even any realistic chance – of success in the guise of contempt applications and so her Application must be dismissed. 

11. Otherwise, the respondent asserts bias, however, did not dispute the submission by counsel for the applicant that there was no application to the primary judge that he recuse himself prior to the disposition of the contempt application.  In most circumstances the absence of such an application makes it extremely difficult to succeed on a bias challenge on appeal.

12. It is appropriate that there should be an order that the respondent gives security for costs in the amount sought.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 26 July 2018.

Associate: 

Date:  26 July 2018