Mead v Mead - [2010] FCA 288

FEDERAL COURT OF AUSTRALIA
Mead v Mead [2010] FCA 288

Citation: Mead v Mead [2010] FCA 288

Parties:
LUCY GUITAR MEAD v COLIN ANTHONY MEAD

LEE CHIN LIEN YANG v COLIN ANTHONY MEAD

File number(s): NSD 1445 of 2009
NSD 1447 of 2009

Judge: JACOBSON J

Date of judgment: 11 March 2010

Catchwords: PRACTICE AND PROCEDURE – Security for costs – whether application for security is oppressive – question of balance – where grounds of appeal are a re-ventilation of matters already decided

Legislation: Federal Court of Australia Act 1976 (Cth) s 56

Cases cited: Yang v Mead [2009] FCA 1202 cited
Mead & Mead (No 2) [2009] FMCA 1107 cited
Beames v Rigby [2002] FCA 1095 followed

Date of hearing: 11 March 2010

Date of last submissions: 11 March 2010

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 16

In NSD 1445 of 2009:

The Appellant: The Appellant appeared in person

Solicitor for the Respondent: Mr M Lim (Etheringtons Solicitors)

In NSD 1447 of 2009:

The Appellant: Ms L Mead made submissions on behalf of the Appellant

Solicitor for the Respondent Mr M Lim (Etheringtons Solicitors)

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1445 of 2009

BETWEEN:
LUCY GUITAR MEAD
Appellant

AND:
COLIN ANTHONY MEAD
Respondent

JUDGE:

JACOBSON J

DATE OF ORDER:

11 MARCH 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The Appellant, Ms Lucy Guitar Mead, together with the Appellant in proceeding NSD 1447/2009, Ms Lee Chin Lien Yang, provide security for costs for the appeals NSD 1445/2009 and NSD 1447/2009 in the amount of $10,000 in a form acceptable to the Registrar of the Court on or before Monday 12 April 2010.
2.The matter be stayed pending the provision of the security for costs.
3.The matter be stood over for further directions on Thursday 22 April 2010 at 9:30 am.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1447 of 2009

BETWEEN:
LEE CHIN LIEN YANG
Appellant

AND:
COLIN ANTHONY MEAD
Respondent

JUDGE:

JACOBSON J

DATE OF ORDER:

11 MARCH 2010

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The Appellant, Ms Lee Chin Lien Yang, together with the Appellant in proceeding NSD 1445/2009, Ms Lucy Guitar Mead, provide security for costs for the appeals NSD 1445/2009 and NSD 1447/2009 in the amount of $10,000 in a form acceptable to the Registrar of the Court on or before Monday 12 April 2010.
2.The matter be stayed pending the provision of the security for costs.
3.The matter be stood over for further directions on Thursday 22 April 2010 at 9:30 am.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mead v Mead

Details

AGLC: Mead v Mead [2010] FCA 288
Case: [2010] FCA 288
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, two appeals were brought by Lucy Guitar Mead and Lee Chin Lien Yang against Colin Anthony Mead. The appeals arose from a long-standing dispute between the parties, which had led to numerous court orders and costs awards against the appellants. The central legal issue in these proceedings was whether the application for security of costs was oppressive and whether it denied the appellants the right to litigate. The court held that under section 56 of the Federal Court of Australia Act 1976, it had the discretionary power to order security for costs. In exercising this discretion, the court considered whether the application for security was being used merely to deny the appellants, who were impecunious, the right to litigate. The court noted that the appellants had been involved in litigation with the respondent for over 12 years and that numerous costs orders had been made against them. The court also observed that the appellants had not satisfied a significant judgment debt, nor had they paid substantial costs awarded in previous proceedings. The court found that the grounds of appeal amounted to a re-ventilation of matters already decided and did not warrant the refusal of an order for security for costs.

The court concluded that, in all the circumstances, the proper exercise of its discretion was to make an order for security for costs. The quantum of the security was set out in an affidavit submitted by Mr. Lim, who represented the respondent. The court ordered that the appellants provide security for the costs of the appeals in the amount of $10,000 in a form acceptable to the Registrar of the Court. The court also ordered a stay of the further prosecution of the appeals pending the provision of security and adjourned the matter for further directions.

Orders