Mead v Mead (No 2)
[2010] FCA 432
FEDERAL COURT OF AUSTRALIA
Mead v Mead (No 2) [2010] FCA 432
Citation: Mead v Mead (No 2) [2010] FCA 432 Appeals from: Mead v Mead (No 2) [2009] FMCA 1107
Mead v Yang [2009] FMCA 1160Parties: 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 2009Judge: JACOBSON J Date of judgment: 6 May 2010 Catchwords: PRACTICE AND PROCEDURE – failure to comply with Court order to pay security for costs – want of prosecution – appeals are a re-ventilation of matters already argued – appeals dismissed Legislation: Federal Court of Australia Act 1976 (Cth) ss 25(2B)(ba), 25(2B)(bb)(i)
Cases cited: Mead v Mead [2010] FCA 288 cited
Lee Chin Lien Yang v Colin Anthony Mead [2010] HCASL 51 referred to
Lucy Guitar Mead v Colin Anthony Mead [2010] HCASL 52 referred to
Yang v Mead [2009] FCA 1202 citedDate of hearing: 6 May 2010 Date of last submissions: 6 May 2010 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 12 In NSD 1445 of 2009: The Appellant: The Appellant appeared in person Solicitor for the Respondent: Mr Lim of Etheringtons Solicitors In NSD 1447 of 2009: The Appellant: Ms L Mead made submissions on behalf of the Appellant Solicitor for the Respondent: Mr Lim of Etheringtons Solicitors
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1445 of 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: LUCY GUITAR MEAD
AppellantAND: COLIN ANTHONY MEAD
Respondent
JUDGE:
JACOBSON J
DATE OF ORDER:
6 MAY 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be dismissed.
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
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: LEE CHIN LIEN YANG
AppellantAND: COLIN ANTHONY MEAD
Respondent
JUDGE:
JACOBSON J
DATE OF ORDER:
6 MAY 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal be dismissed.
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 1445 OF 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: LUCY GUITAR MEAD
AppellantAND: COLIN ANTHONY MEAD
Respondent
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1447 OF 2009
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: LEE CHIN LIEN YANG
AppellantAND: COLIN ANTHONY MEAD
Respondent
JUDGE:
JACOBSON J
DATE:
6 MAY 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
On 11 March 2010 I made orders for security for costs in these matters. I ordered an amount of $10,000 be provided as security for costs in both of the appeals. I gave reasons for those orders in my judgment on that day; see Mead v Mead [2010] FCA 288.
The orders for security were not complied with and the matter came before me for directions on 22 April 2010. On that occasion there was no appearance on behalf of the appellants but Mr Lim appeared for the respondent in each matter. He asked me to dismiss the appeals on account of the failure of the appellants to satisfy the order for security. Notwithstanding the failure of the appellants to appear on that occasion, I took the view that the appropriate course was to stand the matter over to today.
Mr Lim again asks me to exercise my power to dismiss the appeals. Although he was unable to refer me to the appropriate provision, I am satisfied that I do have power to dismiss the appeals under section 25(2B)(bb)(i) of the Federal Court of Australia Act 1976 (Cth) by reason of the failure of the appellants to comply with a direction of the court. The direction in this case is in the form of an order that the appellants provide security for costs in the terms which I ordered on 11 March 2010.
I would also have power to dismiss the appeals pursuant to section 25(2B)(ba) of the Federal Court of Australia Act 1976 (Cth), dismissing the appeal for want of prosecution. It seems to me that that power arises even though Ms Mead who appears before me this morning seems to be anxious to proceed with the appeals. Nevertheless, the power arises and the want of prosecution occurs by reason of the failure of the appellants to provide security in accordance with my orders.
Ms Mead asked me to exercise my discretion against the dismissal of the proceedings, however, the matters to which she referred all relate to the history of the litigation between the parties to which I referred in paragraph 4 of my earlier judgment.
It is apparently true, as Ms Mead pointed out, that she has paid the sum of $175,000 into the Family Court in satisfaction or perhaps partial satisfaction of certain orders made in that Court. The fact that she has done so is irrelevant to the issue which arises before me. My order for the provision of security is a separate order from the orders made in the Family Court and it is the failure of the appellants to satisfy the orders for security in this Court which enlivens the power to dismiss the appeals.
Nor do I consider it appropriate, as was suggested to me by Ms Mead, to transfer the proceedings to the Family Court, even if I had power to do so. The appellants have brought the appeals in this court and the appeals relate to sequestration orders that were made in the Federal Magistrates Court.
As I referred to in my earlier judgment, a matter which seems to me to be of particular importance in the exercise of my discretion is the fact that the appellants failed in proceedings before Flick J. Special leave to appeal against the orders made by Flick J was refused by the High Court on 30 March 2010. There are separate reasons and orders made in two matters, namely, Lee Chin Lien Yang v Colin Anthony Mead [2010] HCASL 51 and Lucy Guitar Mead v Colin Anthony Mead [2010] HCASL 52.
The reasons for the refusal of special leave were given by Heydon and Bell JJ who dealt with each of the applications. Their Honours said in each matter that there was no reason to doubt the correctness of the decision of Flick J. I referred in my earlier judgment to the decision of Flick J and his Honour’s reasons for judgment in the matter of Yang v Mead [2009] FCA 1202.
As I said in my earlier reasons, it would appear that Ms Mead’s arguments in relation to each of the matters and the prospects of success on appeal are at best, slim. They seem to me to be no more than a re-ventilation of matters which have already been argued, and that is a further reason to exercise my power to dismiss the appeals.
The rejection of each of the applications for special leave is of particular importance in this regard because it would seem that any matter which might possibly have been ventilated on the appeal was already covered by the observations of Flick J when he dismissed the appeal from the orders of Barnes FM.
Accordingly, for those reasons I propose to make an order in each of the appeals that the appeal be dismissed.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate:
Dated: 10 May 2010
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