ORJIT and YADU

[2022] FCWA 180

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: ORJIT and YADU [2022] FCWA 180

CORAM: O'BRIEN J

HEARD: 22 AUGUST 2022

DELIVERED : Ex tempore

FILE NO/S: [REDACTED]

BETWEEN: MS ORJIT

Applicant

AND

MR YADU

Respondent

Catchwords:

STAY OF OPERATION OF ORDERS - Where the primary orders of this Court compel the husband to execute documents to transfer a specified property to the wife, consistent with final property orders made by the [South African Court] to which he consented - Where the husband's appeal against the primary orders was dismissed by the Federal Circuit and Family Court of Australia (Division 1) - Where the husband has filed in the High Court an application for special leave to appeal against that dismissal - Where the present application seeks a stay of the primary order pending determination of the special leave application and, if special leave is granted, the appeal - Where the application if granted would in effect stay the orders of the intermediate appellate court - Where there is no power to make the order sought - Where in any event there is no merit in the application - Application dismissed with costs.

Legislation:

Family Law Act 1975 (Cth)
Judiciary Act 1903 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr D Klicker
Respondent	:	Mr F Robertson

Solicitors:

Applicant	:	Beacon Family Law
Respondent	:	Fahey Mwenda D'Adamo

Case(s) referred to in decision(s):

Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

Anderson & Senior (Stay Appeal) (2013) FLC 93-556

Cape & Cape (2013) FLC 93-549

Commissioner of Taxation v Multiflex Pty Ltd (2011) 82 ATR 724

Daebo International Shipping Co Ltd v The Ship Go Star (No 3) [2012] FCA 1475

Grassby v The Queen (1989) 168 CLR 1

Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681

Langley & Tarelli (No 3) (2021) FLC 94-060

Martin & Commissioner of Police (No 2) [2022] FedCFamC1A 76

Millar and Millar (1983) FLC 91-326

Molier and Van Wyk (No. 2) (1981) FLC 91-001

Orjit and Yadu [2021] FCWA 204

Patrick Stevedores Operations No 2 Pty Ltd and Ors v Maritime Union of Australia and Ors (1998) 72 ALJR 869

Perlman v Perlman (1984) 155 CLR 474

Re The Duke Group (in liq) and Corporations Law of South Australia; Gerah Imports Pty Ltd v The Duke Group (in liq) (1994) 119 ALR 401

The Commissioner of Taxation of the Commonwealth of Australia v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220

Yadu & Orjit [2022] FedCFamC1A 79

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Orjit and Yadu has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

1The matter requiring determination is the application filed by [Mr Yadu] ("the husband") on 28 July 2022 seeking a stay of the operation of orders made by me on 5 November 2021 ("the primary orders") pending "the outcome of the High Court appeal filed [in mid] 2022". The relief sought is inaccurately described. What is pending is the husband’s application for special leave to appeal, but nothing turns on that. The application is opposed by [Ms Orjit] ("the wife"), who filed a response on 18 August 2022.

2In support of his application the husband relies on his affidavit filed with it and written submissions filed on 15 August 2022. The wife relies on the affidavit filed with her response.

3The relevant background, while long and unfortunate, may be relatively briefly summarised.

4The parties were married [in] February 2000 and separated in March 2011. The wife commenced divorce proceedings and final orders were made in the [South African Court] on 17 June 2011. Orders were also made in relation to the property of the parties ("the South African property orders"). One of those orders provided that the wife be "the sole owner of the immovable property in Australia to the exclusion of [the husband]". That immovable property included a jointly owned property at [City A] ("the City A property"). That property remains registered in the joint names of the parties and the litigation initiated by the wife in this Court was directed towards its transfer to her sole ownership.

5The wife first commenced proceedings in this Court on 30 November 2015. Her application was dismissed for the reasons set out in my judgment published [in late] 2016. After further litigation in South Africa, the wife commenced fresh proceedings in this Court on 15 July 2019. In that application as initially framed, she sought relief pursuant to s 79 of the Family Law Act 1975 (Cth) ("the Act"). In responding documents, the husband also sought relief by way of alteration of property interests. For reasons delivered ex tempore on 5 November 2021 ("the primary judgment"),[1] I summarily dismissed that aspect of the husband’s response and made orders pursuant to s 114 requiring the wife to provide him with all necessary documents to be executed to give effect to the transfer of the City A Property to her, requiring the husband to execute and return those documents, and appointing the Principal Registrar to execute the documents on his behalf if he did not.

[1] Orjit and Yadu [2021] FCWA 204.

6The husband appealed the orders made pursuant to s 114. He did not appeal against the summary dismissal of his response. He contended that the orders appealed were made "beyond power" because there was no matrimonial cause so as to found the operation of s 114(1). He argued that paragraph (e) of the definition of "matrimonial cause" was not engaged, as the wife’s application was not made "in circumstances arising out of the marital relationship".

7On 13 January 2022, the husband filed an application in this Court seeking a stay of the relevant primary orders pending the outcome of his appeal. On 25 January 2022, orders were made by consent staying the primary orders pending the determination or withdrawal of the appeal.

8Relevantly, those orders were made upon the agreed condition that the husband lodge with the court within 28 days the executed transfer of land document in respect of the City A Property, with that document to be retained by the Principal Registrar pending the determination or withdrawal of the appeal. The orders were also made on the agreed condition that within 28 days of being provided with the relevant change of use document for execution, the husband execute and lodge that document with the Principal Registrar on the same conditions. The orders further provided that upon dismissal or withdrawal of the appeal, no earlier than seven days thereafter the Principal Registrar forward the executed documents to the solicitors for the wife.

9The husband did not comply with the agreed conditions on which the stay order was founded.

10The husband’s appeal was heard by the Federal Circuit and Family Court of Australia (Division One) in its appellate jurisdiction (for convenience, "the Full Court"). It was dismissed with costs on 24 May 2022 for reasons delivered ex tempore.[2] The Court observed that the husband’s submission earlier described was "surprising" given that he "necessarily relied upon the existence of a matrimonial cause… to prosecute his opposing application for property settlement relief under s 79 of the Act."

[2] Yadu & Orjit [2022] FedCFamC1A 79.

11The husband filed his application for special leave to appeal in the High Court [in mid] 2022. Necessarily, his application seeks special leave to appeal the orders of the Full Court as distinct from the primary orders.[3] As will be seen, that assumes some importance in the disposition of the present application.

[3] Family Law Act 1975 (Cth) s 47D.

12It was not until 28 July 2022 that the husband filed the stay application presently requiring determination. The application was listed to be heard as promptly as the court could accommodate it and directions were made requiring the parties to file and serve any written submissions by 15 August 2022.

13Pursuant to the primary orders, the relevant transfer of land has been executed by the Principal Registrar and sent to the wife’s lawyers. Those lawyers volunteered an undertaking not to deal with the executed document pending determination of the present application.

14The husband filed written submissions as ordered. In summary, he submitted:

(a)that his proposed appeal to the High Court would be rendered nugatory if a stay is not granted;

(b)that his application for special leave can be expected to be heard and determined by the end of the year;

(c)that his application for special leave is "not unarguable"; and

(d)that any perceived prejudice to the wife is minimal when regard is had to her own delay in commencing the primary proceedings.

15The submissions otherwise set out in uncontroversial terms the principles ordinarily applicable to a stay application.[4]

[4] Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106, [18].

16The wife did not file written submissions as ordered. Rather, she filed an affidavit in which, after reciting the relevant history, she proffered an undertaking that pending determination of the special leave application (and the appeal if special leave is granted) she would not dispose of or encumber the City A Property and would effect its transfer back into joint names if the decision of the Full Court is set aside.

A fundamental question

17A fundamental question arises as to whether the present application has a proper basis, bearing in mind that the relevant order which the husband seeks to appeal was not made by this Court.

18While that question was not addressed in the written submissions of either party, it has been the subject of consideration in reported decisions. I drew those authorities to the attention of counsel at the commencement of the hearing, to afford them the opportunity to consider them.

19In Anderson & Senior (Stay Appeal) ("Anderson")[5] the Full Court[6] emphasised that the proceedings in the High Court were a challenge to the order dismissing the relevant appeal, and not to the orders of the primary judge. The "hierarchy of courts" was noted, and the Court questioned whether once the primary orders had "received the imprimatur of the appellate court" the primary judge could stay their operation absent specific legislative authorisation.[7] Absent such specific authorisation, the Full Court observed that "arguably the first step for an appellant wishing to appeal to the High Court should be to apply for a stay of the order of the Full Court dismissing the appeal".[8]

[5] Anderson & Senior (Stay Appeal) (2013) FLC 93-556.

[6] The Full Court of the Family Court of Australia, as it then was.

[7] Anderson & Senior (Stay Appeal) (2013) FLC 93-556, [22]; see also Molier and Van Wyk (No. 2) (1981) FLC 91-001.

[8] Anderson & Senior (Stay Appeal) (2013) FLC 93-556, [23]; see also Commissioner of Taxation v Multiflex Pty Ltd (2011) 82 ATR 724.

20The question of the power of a primary Judge to stay orders upheld by the dismissal of an appeal, pending the determination of an application for special leave to appeal that dismissal, was considered more recently by Austin J sitting alone in the appellate jurisdiction of the Federal Circuit and Family Court of Australia (Division 1) in Martin & Commissioner of Police (No 2) ("Martin").[9] His Honour considered that there was "very good reason to think the primary judge had no power to grant such a stay", the relevant power having "evaporated" on dismissal of the appeal. His Honour said that "in all probability, the primary judge was functus officio thereafter".[10] I note that the primary order in question in that case was a return order pursuant to the Family Law (Child Abduction Convention) Regulations 1986 (Cth); whether there is any relevant distinction to be drawn between an order of that nature and the primary order in this case, particularly in terms of exhaustion of power, was not the subject of any submissions before me. Without the benefit of submissions, I express the view that there is no such relevant distinction.

[9] Martin & Commissioner of Police (No 2) [2022] FedCFamC1A 76.

[10] Ibid, [16].

21It cannot be doubted that the Full Court has power to stay its own order pending determination by the High Court of the application for special leave to appeal. Compelling circumstances are required to justify the use of that power.[11] The High Court itself has power, albeit "seldom invoked and rarely exercised"[12] to stay the primary orders. In my view, the Full Court similarly has implied power to stay the primary orders (were they not initially stayed) pending the determination of the application for special leave to appeal its own orders, although I acknowledge the point is not settled.[13]

[11] Langley & Tarelli (No 3) (2021) FLC 94-060.

[12] Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681, 683.

[13] Martin & Commissioner of Police (No 2) [2022] FedCFamC1A 76, [17] per Austin J.

22If a Full Court stays its order dismissing an appeal the primary orders remain in force. That may give rise to a need to seek a stay of those primary orders. However, where (as in this case) the primary orders were stayed pending the determination of the appeal, the effect of the Full Court ordering a stay of its own order is to "restore the status quo ante" and revive the stay order made by the primary judge.[14]

Discussion and conclusion on the fundamental question

[14] Ibid, [25]; see also Millar and Millar (1983) FLC 91-326.

23In my view, I do not have the power to make the orders sought in the present application. I clearly have the power to stay a primary order of this Court pending the determination of an appeal against that order; the appeal against the primary order has been determined. The order which the husband presently seeks to appeal is that made by the Full Court; I do not have the power to stay that order.

24The proposition that by virtue of the commencement of an application for special leave to appeal against the order of the Full Court I somehow acquire power to stay the primary order when it is not itself the subject of appeal does not, in my view, bear scrutiny. Implicit in that proposition is an inappropriate blurring of form and substance. By purporting to stay the primary order I would, in effect if not in form, stay the order of the Full Court dismissing the appeal against it. That would be entirely inconsistent with the hierarchy of courts to which the Full Court directed attention in Anderson. I respectfully agree with the view expressed by Austin J in Martin.

25As earlier noted, those matters were not addressed in the materials filed by the parties prior to the hearing. They were not fully addressed by counsel appearing at the hearing and appear, with no disrespect, not to have been considered until raised by me. In those circumstances and bearing in mind that a number of the observations in Anderson and in Martin were obiter, I will consider the application on its merits in case I am wrong in my primary conclusion.

The legal principles

26The authorities stress the discretionary nature of what might be described as a "usual" application for a stay of a primary order pending the determination of an intermediate Court of Appeal.[15] The mere filing of a notice of appeal (or, in this case, an application for special leave to appeal) is insufficient to ground a stay.

[15] Cape & Cape (2013) FLC 93-549, 218 [23].

27The applicant bears an onus to establish a proper basis for the stay but is not required to demonstrate "special" or "exceptional" circumstances.

28A person who has obtained a judgment is entitled to the benefit of that judgment, and to presume that the judgment is correct.

29In exercising its discretion, the court may consider the bone fides of the applicant.

30A stay may be granted on terms that are fair to both parties. That in turn may involve the court weighing the competing rights of the parties and the balance of convenience as between them.

31A weighing of any asserted risk that an appeal may be rendered nugatory if a stay is not granted will be a substantial factor in the exercise of the discretion. That risk has been described in various terms, including the identification of a "real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed",[16] and whether the grant of a stay is required to "preserve the subject matter or integrity of the litigation".[17] The exercise of the discretion is also informed by a preliminary assessment of the strength of the proposed appeal and by reference to the period of time in which the appeal can be heard.

[16] The Commissioner of Taxation of the Commonwealth of Australia v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220, 223.

[17] Grassby v The Queen (1989) 168 CLR 1.

32Those are the principles applying to the consideration of an application to stay a primary order pending the determination of an intermediate appellate court. Where the stay in question is sought pending the determination of an application to the High Court for special leave to appeal, the bar is if anything set higher.

33The inherent jurisdiction of the High Court to order a stay of proceedings pending the determination of an application for special leave is "an extraordinary jurisdiction which will only be exercised in exceptional circumstances".[18]

[18] Re The Duke Group (in liq) and Corporations Law of South Australia; Gerah Imports Pty Ltd v The Duke Group (in liq) (1994) 119 ALR 401 ("Gerah Imports") per Dawson J; see also Patrick Stevedores Operations No 2 Pty Ltd and Ors v Maritime Union of Australia and Ors (1998) 72 ALJR 869 per Hayne J.

34Even if the subject matter of the proposed appeal will be lost if a stay is not granted, such that the application for special leave would be rendered nugatory, that is not of itself sufficient to justify a stay. The applicant must establish "a substantial prospect that special leave to appeal will be granted".[19] The court will also consider whether the grant of a stay will cause loss, and where the balance of convenience lies.[20]

[19] Gerah Imports, 404.

[20] See Daebo International Shipping Co Ltd v The Ship Go Star (No 3) [2012] FCA 1475 and the authorities there cited.

35Clearly, even if I have power to stay the primary order, the statements of principle made by the High Court as to its own exercise of relevant power bind me.

36Self-evidently, the onus is on the applicant to persuade the court to exercise the relevant discretion in his favour.

Discussion and conclusion

37The history outlined above is relevant to a consideration of the bona fides of the husband.

38The husband consented to the original South African property orders in June 2011; as the Full Court observed, he has "thereafter obstructed the wife’s attempts to have the registered title in the [City A Property] transferred from joint names into her sole name".[21]

[21] Yadu & Orjit [2022] FedCFamC1A 79, [6].

39After the primary orders were made, the husband appealed to the Full Court as was his right. He applied for a stay and again was well within his rights to do so. He took both steps before the expiry of the time within which, pursuant to the primary orders, he was required to sign and return the necessary transfer documents.

40However, the wife’s agreement to the stay of the primary orders (and thus, the stay order itself) was predicated on the agreed conditions summarised above; the husband did not comply with those conditions and no excuse for his failure to do so is proffered. The clear intent of those conditions was that the wife would be in a position to immediately complete the transfer of the City A Property into her sole name upon dismissal or withdrawal of the appeal; the husband subverted that intent by simply failing to comply with that to which he had agreed.

41Had the husband complied, it may reasonably be anticipated that the transfer of the Fremantle property would have been effected even before his application for special leave to appeal against the orders of the Full Court had been filed. I note that the decision of the Full Court was delivered ex tempore on 24 May 2022 and the application for special leave was not filed until [mid] 2022.

42Still further, the present application for a stay of the primary order was not filed until 28 July 2022. No reason for the delay was advanced.

43Against that background, I am not satisfied of the bone fides of the husband either in the special leave application or in the present application for a stay of the primary orders. I also place no credence on his statement in his most recent affidavit that if his "appeal is unsuccessful [the City A Property] can be transferred promptly thereafter" given the non-compliance already outlined, if in fact that transfer requires him to take any steps.

44There is no information before me as to when it might reasonably be anticipated that the husband’s application for special leave, let alone any appeal if special leave is granted, might be heard. Nevertheless, I am prepared to assume for present purposes that, as the husband submits, it is likely that the application for special leave will be heard and determined by the end of the year.

45For reasons that follow, I am not persuaded that there is a "substantial prospect"[22] that special leave would be granted in any event. Indeed, there was no submission to that effect. Rather, the husband submitted only that his application for special leave is "not unarguable". The gulf between a case being "not unarguable" and having a "substantial prospect" of success is obvious and significant.

[22] Gerah Imports.

46The proposed appeal is grounded in the contention that the Full Court erred in law by failing to find that the proceedings before me were not a matrimonial cause.

47In considering an application for special leave the High Court may have regard to any matters that it considers relevant. It is required to have regard to whether the relevant proceedings involve a question of law of public importance, whether because of its general application or otherwise, or in respect of which a decision of the High Court is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law. It is also required to consider whether the interests of the administration of justice require it to consider the judgment in respect of which special leave to appeal is sought.[23]

[23] Judiciary Act 1903 (Cth) s 35A.

48The husband contends that there is in this case a question of law of public importance because the "proper construction, metes and bounds of subparagraph (e) of the definition of matrimonial cause… impacts upon the jurisdiction of Courts exercising power under [the Act]". He refers in particular to a passage from the judgment of Gibbs CJ in Perlman v Perlman[24] in support of that proposition. He does not refer to the judgment of Wilson J, in which his Honour said that it was "neither necessary nor helpful to attempt any abstract definition of the limits of [subparagraph (e)]" and that "if such a definition were attempted there may well be difficulty in drawing the line but a solution will often be found in a particular case by recalling ‘the answer of a great judge that, though he knew not when day ended and night began, he knew that midday was day and midnight was night’".[25]

[24] Perlman v Perlman (1984) 155 CLR 474.

[25] Perlman v Perlman (1984) 155 CLR 474, 500.

49While I acknowledge that in Perlman the High Court concluded that the failure of the husband in that case to honour his obligations under a maintenance agreement did not amount to a circumstance arising out of the marital relationship, saying rather that the agreement in question arose out of the marital relationship but the proceedings for its enforcement did not, in my view something more than the arguments raised as to the reference to that decision by the Full Court will be required for special leave to be granted.

50Nevertheless, I accept the submission of the husband that if the primary order is not effectively stayed (by whatever mechanism) there is a real risk of his proposed appeal to the High Court being rendered nugatory. While I note the undertaking initially proffered by the wife, I do not rely upon it as being in any sense determinative of the application. I acknowledge that there are issues with the form of undertaking proffered, as noted by counsel for the husband, but as will be seen nothing turns on that.

51The uncontested facts as to the litigation history of the matter, and the entitlement of the wife to presume that both the primary judgment and the judgment of the Full Court are correct and to have the benefit of them weigh heavily in the exercise of the relevant discretion. I am not satisfied as to the bona fides of the husband for all the reasons already summarised above and having regard to the matters set out in the primary judgment, which were not the subject of challenge on the appeal.

52The fact that the City A Property has not already been transferred into the sole name of the wife, only because the husband failed to comply with the agreed conditions upon which the original stay of the primary orders was granted, mitigates against the exercise of a discretion in his favour. The fact that he can still argue that the failure to grant a stay would render his special leave application nugatory arises only because he did not comply with the conditions of the original stay, to which he agreed.

53My primary conclusion is that I do not have the power to make the order sought. Even if I am wrong in that conclusion, and I do have the necessary power, there is in my view no merit in the application for the reasons just set out.

54The husband’s application will be dismissed.

55After I raised the question of my power to make the orders sought, counsel for the wife volunteered an undertaking that he would not deal with the transfer document executed by the Principal Registrar pending determination of any application the husband might make to the Full Court (whether constituted by the bench which heard the appeal, or more likely a single judge of the Federal Circuit and Family Court of Australia (Division 1) sitting in the Appellate jurisdiction) provided such application is filed within seven days. I accept that undertaking as proffered.

Costs

56The wife sought costs in the modest sum of $1,000.

57There is no current evidence as to the respective financial circumstances of the parties. Neither is in receipt of legal aid. The conduct of the only relevant proceedings (the present application) by both parties has been appropriate. I do not regard the wife’s proffered undertaking as relevant in the circumstances.

58The husband has been wholly unsuccessful in the relevant sense. That alone would, in my view, justify an order for costs. I further take into account the litigation history already outlined, pursuant to s 117(2A)(g), including but not limited to the husband’s failure to comply with the agreed conditions upon which the earlier stay of the primary order was granted and the practical effect of that failure.

59I am satisfied both that an order for costs is justified, and that the amount sought is just.

Orders

60There will be the following orders:

1.The Form 2 application filed by the Respondent, [Mr Yadu], on 28 July 2022 be and is hereby dismissed.

2.The Respondent must pay costs to the Applicant, [Ms Orjit], fixed in the sum of $1,000.

These reasons are the reasons for decision delivered on 22 August 2022, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM

Associate

29 AUGUST 2022