MCMILLAN & MCMILLAN
[2017] FamCA 773
•28 September 2017
FAMILY COURT OF AUSTRALIA
| MCMILLAN & MCMILLAN | [2017] FamCA 773 |
| FAMILY LAW – Property – Enforcement warrant – Where debtor seeking stay of proceedings pending appeal – Where appeal without prospects of success – Stay refused. FAMILY LAW – Property – Enforcement – Where Enforcement warrant issued for incorrect amount – Where creditor wishes for warrant to be dismissed or stayed on grounds frivolous or vexatious – Where no prejudice to debtor if warrant stayed – Warrant permanently stayed. |
| Family Law Act 1975 (Cth) ss 118 Family Law Rules 2004 (Cth) rr 20.09, 22.11 |
| McMillan & McMillan [2016] FamCA 387 McMillan & McMillan(No 3) [2016] FamCA 1141 McMillan & McMillan (No 2) [2016] FamCA 894 McMillan & McMillan [2017] FamCAFC 88 Aldridge & Keeton (Stay Appeal) [2009] FamCAFC 106 |
| APPLICANT: | Mr McMillan |
| RESPONDENT: | Ms McMillan |
| FILE NUMBER: | CSC | 355 | of | 2015 |
| DATE DELIVERED: | 28 September 2017 |
| PLACE DELIVERED: | Cairns |
| PLACE HEARD: | Cairns |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 10 August 2017 |
REPRESENTATION
| THE APPLICANT: | In person |
| SOLICITORS FOR THE RESPONDENT: | Williams Graham Carman Solicitors |
Orders
The execution warrant issued 16 June 2016 be permanently stayed.
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 McMillan & McMillan 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).
| FAMILY COURT OF AUSTRALIA AT CAIRNS |
FILE NUMBER: CSC355/2015
| Mr McMillan |
Applicant
And
| Ms McMillan |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 16 June 2016, at the request of Ms McMillan (“the wife”) a Registrar of the Family Court of Australia issued an enforcement warrant pursuant to Part 2.3 of the Family Law Rules, authorising the seizure and sale of the property of Mr McMillan (“the husband”). This was the second such enforcement warrant issued at the wife’s behest: an earlier enforcement warrant issued on 15 June 2015 was stayed by me on 23 May 2016 for reasons delivered on that day: McMillan & McMillan [2016] FamCA 387.
The matter has a long and complex history, much of which was traversed in my May 2016 reasons. However since then it has continued to take a tortuous path.
By Application in a Case filed 12 September 2016, the husband sought, amongst other things, orders that the 16 June 2016 warrant be dismissed or struck out. However in the material filed in support of that application, the husband, who self-represents, indicated that for various reasons, I should recuse myself from dealing with his application. That application was made returnable on 21 September 2016, however on 19 September 2016, the husband filed a further Application in a Case, seeking a stay of the enforcement warrant pending a hearing of his Application in a Case filed 12 September 2016.
When the matter first came before me on 21 September 2016, I made directions for the filing of further material and submissions in relation to the husband’s application that I recuse myself from further dealing with the matter, but arranged for the husband’s Application in a Case filed 19 September 2016 to be heard by a Judge other than myself, given the urgent need for it to be determined.
On 30 September 2016, by consent, Forrest J ordered an interim stay of the enforcement warrant, but otherwise dismissed the husband’s Application in a Case filed 19 September: McMillan & McMillan(No 3) [2016] FamCA 1141.
Next, on 25 October 2016 for reasons published on that day, I declined to recuse myself from hearing the substantive application filed 12 September 2016: McMillan & McMillan (No 2) [2016] FamCA 894.
The matter was next listed before me on 7 December 2016. Although on that occasion the husband did not appear, the solicitor for the wife did not seek any orders in his absence; rather he sought that the matter should be listed for directions on 3 February 2017. On that occasion the husband appeared, but indicated that he intended to seek an extension of time in which to appeal against my decision of 25 October 2016, and directions were made with that in mind, and the matter adjourned to 23 February 2017. On that day, the husband filed two applications for an extension of time to file Notices of Appeal. The first was in respect of my orders of 23 May 2016; the second was in respect of my orders of 25 October 2016. In view of the pending applications to the Full court, the husband’s application was further adjourned.
On 24 April 2017 Murphy J dismissed both of the husband’s applications for an extension of time to bring an appeal: McMillan & McMillan [2017] FamCAFC 88.
Then, on 24 May 2017, when the husband’s application was mentioned before me, it was listed for hearing on Thursday 22 June 2017 in Cairns. However on that latter day, the husband filed a further Application in a Case prior to the matter coming on, in which he sought a variety of relief, including an adjournment and stay, the investigation and charging of the wife and her lawyer, a declaration that the wife is a vexatious litigant, a publication order, and various costs orders. In support of that application the husband also filed an affidavit in which he apparently demonstrated that some of the costs orders, upon which the debt which was sought to be recovered by the enforcement warrant was based, in fact had been paid or otherwise extinguished.
When the matter came on before me on 22 June 2017, unsurprisingly the wife’s solicitor indicated that he wanted more time to consider the husband’s affidavit, and indeed the husband indicated that he did not oppose an adjournment because he himself intended to seek legal advice. That led to me making an order adjourning the application for mention only to 6 July 2017. However as had occurred on 22 June, on 6 July, albeit prior to the matter being mentioned, the husband again filed a further Application in a Case supported by an affidavit. That application sought a variety of relief including:
That the Court not allow the withdrawal of the Enforcement Warrant filed by [Ms McMillan] on 16 June 2016 but that The Court Dismiss and/or Strike Out the Enforcement Warrant on the grounds that it was filed in The Court by Fraudulent Claims and Statements to the Court. (capitalisation in original)
The matter again came on before me on 6 July 2017, at which hearing the wife’s solicitor indicated that it was his intention to discontinue the enforcement warrant, however that brought to the fore the recently filed application, which sought to so restrain the wife from doing so. As to that, the husband contended that the power to restrain the discontinuance was under s 118 of the Family Law Act. Although I was not so persuaded and declined to make any order as sought, I did not otherwise dispose of the Application in a Case filed 6 July 2017. The matter was then adjourned to 10 August 2017 for further mention. By that time it was anticipated that the foreshadowed Notice of Discontinuance would be filed.
However that did not transpire, because, so I was told by the wife’s solicitor on 10 August, the Court’s portal refused to accept the filing of a Notice of Discontinuance in respect of an enforcement warrant.
In the interim however, on 3 August 2017, the husband had filed a notice of appeal against my decision of 6 July 2017, and then on 9 August 2017 filed a further Application in a Case seeking:
An adjournment be granted and all matters currently before the Court be stayed until further notice to the Court, regarding the ongoing Process/Progress of the applicant/appellant’s Appeal currently before The Full Court. (capitalisation in original)
At the hearing on 10 August 2017 I heard the parties’ submissions in relation to the Application in a Case filed 9 August 2017, and dismissed it for reasons to be later published. The wife’s solicitor then orally sought that the enforcement warrant be dismissed or permanently stayed, a course to which the husband’s attitude appeared to vary, although ultimately I take his position to be that he did not agree to it being so dealt with, as he wanted to conduct his appeal. Ultimately I reserved my decision as to the disposition of the enforcement warrant.
These are my reasons for dismissing the husband’s Application in a Case filed 9 August, and my decision in relation to the fate of the enforcement warrant issued 16 June 2016.
THE STAY APPLICATION
Relevant legal principles
By virtue of rule 22.11 of the Family Law Rules, the filing of Notice of Appeal does not stay the operation of the order appealed from, but rather it is incumbent upon the appellant to apply for an order staying the operation of the order to which the appeal or application relates.
In Aldridge & Keeton (Stay Appeal) [2009] FamCAFC 106, the Full Court referred to a number of authorities dealing with stay applications. From those authorities the following appear to be principles relevant to this instant application:
·The onus to establish a proper basis for the stay is on the applicant, but “special” or “exceptional” circumstances are not required to be established;
·A person who has obtained a judgment is entitled to presume the judgment is correct;
·The bone fides of the applicant are relevant;
·Some preliminary assessment of the strength of the proposed appeal should be undertaken;
·The period of time in which the appeal can be heard and whether existing arrangements may support the granting of the stay for a short period of time are both relevant.
Evaluation
The only order that was made on 6 July 2017 was:
1.All extant applications be adjourned for mention only to 2:00pm on Thursday 10 August 2017 in [F Town] by Global Meet Telephone Conference (noting that all dial in details remain the same as previously advised).
Significantly, I did not dismiss the husband’s Application in a Case filed 6 July 2017, or indeed any component of it. Rather what I said in the course of argument was:
.. Well, [Mr McMillan], I am against you on the basis of what you have presently told me. I am not persuaded that s 118 gives me a power to restrain the wife from seeking to discontinue an execution warrant which she has filed. And, hence, I am not inclined to make an interim order to that effect. However, I won’t otherwise dispose of your application.. I won’t otherwise dispose of your application in a case today. What I am inclined to do is list it for further mention at some occasion in the future. By then, [Mr McMillan], either Mr Lago will or will not have got around to filing a notice of discontinuance. If he has, then you can tell me why it is that the applications in a case that are presently outstanding shouldn’t be dismissed. If he hasn’t, then we will need to deal with what occurs then…
Patently, the application in a case filed 6 July 2017 remains unresolved.
It is therefore difficult in the extreme to see what order made on 6 July 2017 has been appealed from by the husband. Even if, inferentially, the adjournment order is that which is appealed from, then it is still nigh impossible to understand the appeal. The only basis proffered by the husband as the source of power upon which the wife could be restrained from discontinuing the enforcement warrant was said to be s 118 of the Family Law Act. That provides:
The Court may, at any stage of proceedings under this Act, if it is satisfied the proceedings are frivolous or vexatious:
(a)dismiss the proceedings; and
(b)make such order as to costs as the court considers just.
That section does not contain any power which would enable a Court to make an order restraining a party from discontinuing an enforcement warrant.
The grounds of appeal – at least on the copy of the Appeal Notice before me – only contained one ground, which alleges that the husband was denied procedural fairness and natural justice. That ground is then particularised by reference to seven further matters, only one of which alleges in fact a denial of natural justice.
The first two particulars relate to s 118, but no basis is set out in them as to how that section, which on its plain language deals with dismissal of proceedings, and not restraining persons from discontinuing proceedings, has any application here.
Next, there are two grounds which allege that I failed to take into account certain factual matters, but of course, other than not being persuaded that s 118 provided a power to restrain the discontinuance of proceedings, I did nothing to dispose of the husband’s Application in a Case filed 6 July 2017 on that day.
Next, there is a ground which alleges that I erred by failing to declare “these proceedings” – presumably the enforcement warrant, as the only extant proceedings are in fact those commenced by the husband – to be frivolous and vexatious. However what that overlooks is that such an application, although made by the husband’s Application in Case filed the day before, was not in fact substantively being disposed of by me on that day. Rather the only issue is whether there was power to restrain the discontinuance or withdrawal of the enforcement warrant.
Next, it is alleged that I erred by not dismissing “the proceedings” – again presumably the enforcement warrant – under s 118. However as I have indicated, on 6 July 2017, the debate as to whether I could restrain the wife from discontinuing her enforcement warrant, the husband wanted her so restrained so as he could press to have it disposed of as being frivolous and vexatious.
The final particular is a general allegation of denial of natural justice, by my not finally disposing of the claims which the wife presses against husband in light of “Documented Fraud and Perjury.” Clearly that was not a matter that I was dealing with on 6 July 2017.
In my view, none of the particularised grounds of appeal enjoy any real prospects of success.
There is room to suspect that the appeal filed 3 August 2017 is, at least on one view, an attempt by the husband to delay the resolution of the wife’s claims against him, which may reflect on his bona fides in bringing the appeal, however I do not think that the evidence would permit me to so conclude on the balance of probabilities.
There is no reason to think that an appeal could not be disposed of promptly.
Weighing those matters in the balance favoured the refusal of the husband’s application for a stay, and I therefore so ordered on 10 August 2017.
THE WIFE’S APPLICATION
Overview
Although there was no formal Application in a Case filed by the wife, during the course of the hearing on 10 August 2017 the wife’s solicitor orally sought an order either permanently staying or dismissing the enforcement warrant issued 16 June 2016. He did so because he conceded that the amounts claimed in it were not accurate, and wished to file (and had already lodged for filing) a further enforcement warrant, which he said claims the correct amounts that are outstanding by way of costs.
Somewhat curiously, the husband opposed the enforcement warrant being disposed of in that way, although the basis for him doing so varied during the course of the hearing. Initially he indicated that it should not be disposed of as I ought await the decision of the Full Court in relation to his appeal, because he “would like it just to remain in the hands of the Full Court to sort this whole matter out, and I think they will have the good sense to dismiss the whole matter and award costs accordingly.. and I think the matter should remain alive until they do now handle the matter that is now clearly before them.”
However when pressed, it appears as though a major part of the husband’s reason for opposing the disposal of the enforcement warrant related to costs, although the wife’s solicitor conceded that nothing that occurred that day would preclude the husband from subsequently bringing an application for costs, albeit it would be opposed. When that was pointed out to the husband, it appeared as though his concern was that I would be the judicial officer determining that application for costs, which he was clearly unhappy about.
Doing the best I can, it appears as though the husband does indeed want the enforcement warrant to be either dismissed or permanently stayed, but he wants it expressly so disposed of on the basis that it is frivolous and vexatious, and hence under s 118. Therefore the real question is whether the execution debtor under an enforcement warrant – which the execution creditor concedes is flawed and wants to withdraw – can insist upon it not being dismissed or stayed except on the contended basis that it is frivolous or vexatious. Although that is the issue, it arises in the context of the wife’s application to permanently stay or dismiss the enforcement warrant.
Relevant legal principles
Albeit in the context of the husband’s then application that the enforcement warrant be dismissed, struck out or stayed, in McMillan & McMillan [2016] FamCA 387 I discussed the relevant statutory provisions and legal principles applicable to such applications, and particularly the power to stay the operation of an enforcement order under Family Law Rule 20.09(1) noting that the specific language in the Rules is “discharge suspend or vary the order.” I adopt what I then said in relation to such application in these reasons.
Evaluation
The following points are in favour of the execution warrant issued 16 June 2016 being stayed or dismissed:
·The execution creditor no longer wishes to have that warrant acted upon;
·The execution creditor concedes that the amount claimed in it is erroneous, as she concedes that in fact some of the costs orders upon which it is based have been satisfied, or at least are no longer outstanding;
·She now wishes to issue a fresh enforcement warrant for the correct sum, based upon the correct outstanding liabilities;
·The same issues as the husband wants to argue in relation to the 16 June 2016 enforcement warrant, will remain available to him in relation to any new warrant that may issue.
On the other hand the husband appears to rely upon the following as to why it should not be dismissed or stayed, as sought by the wife:
·Although he concedes it should be dismissed or stayed, he wants it so dismissed or stayed on the express ground that it is frivolous or vexatious;
·Although, in part, that is so as he can seek an order for costs, and although he accepts that he would have an opportunity to seek costs consequent upon the dismissal or staying of the warrant as sought by the wife, he does not want me to be dealing with any such costs application;
·He wants to use the opportunity which the enforcement warrant affords him to argue a range of matters, including alleged perjury and other misconduct by the wife and her solicitors from time to time.
The critical point, it seems to me, is that even if the enforcement warrant is dismissed or stayed, the husband will not be precluded from subsequently contending all of the points he wishes to press in relation to this enforcement warrant, in relation to the fresh warrant. He will not in any way be prejudiced from arguing that the warrant is issued frivolously or vexatiously, or indeed it should be stayed or dismissed on any basis that he may feel is meritorious. He will suffer no prejudice.
Further, there is something absurd in requiring a party to litigate against their will in relation to execution process which they concede is flawed and ought not be further acted upon. The reasons put forward by the husband as to why she should be so forced have no merit, in that he does not suffer any prejudice by virtue of the course proposed by the wife.
I am therefore satisfied that the present enforcement warrant should be disposed of as contended by the wife.
The only issue then remaining is to whether it should be dismissed or stayed (noting that the wife does not seek for it to be varied, but wishes to issue a new warrant). In my view the appropriate order is for it to be permanently stayed, as I ordered in my earlier decision in relation to the first enforcement warrant. There will therefore be an order that the warrant issued 16 June 2016 be permanently stayed.
CONCLUSION
For these reasons there will be orders as set out at the commencement of this judgment.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 28 September 2017.
Associate:
Date: 28 September 2017
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