P & S

[2005] FamCA 913

[2005] FamCA 913

FAMILY LAW ACT 1975

IN THE FULL COURT       
OF THE FAMILY COURT OF AUSTRALIA                   Appeal No EA66 of 2005
AT SYDNEY  File No SYF6202 of 2002

BETWEEN:

P
Appellant Husband
- and -

S
Respondent Wife

REASONS FOR JUDGMENT

CORAM:  FAULKS DCJ, KAY & BOLAND JJ
DATE OF HEARING:                 24 August 2005
DATE OF JUDGMENT:             24 August 2005

APPEARANCES:  The Appellant Husband in person.

Mr Giveny of Counsel, instructed by Cluff & Sant, Solicitors, 6/149 Hawkesbury Road, Westmead, NSW 2145 appeared on behalf of the Respondent Wife.

P & S
EA66 of 2005
Coram:  Faulks DCJ, Kay & Boland JJ
Date of Hearing:  24 August 2005
Date of Judgment:  24 August 2005-09-27

Catchwords:  APPEAL – SECURITY FOR COSTS - appeal against consent property orders – limited prospects of success - appellant ordered to provide $3000 security for costs.

KAY J: 

1. This is an application for security of costs in relation to an appeal instituted by the husband against orders made by Coleman J at Parramatta on 16 May 2005 in property proceedings.  The orders were in fact made by consent.

1. By his amended Notice of Appeal the appellant seeks to argue five grounds

• “that the trial Judge erred in determination of the pool of assets for division;

• that the trial Judge erred in judicial prejudice by not allowing the appellant procedural fairness

• the trial Judge erred in accepting evidence provided by the respondent and not allowing evidence by the appellant;

• the trial Judge erred in accepting an amount of $124,969 as a total amount of pool of assets against the pool of assets of $1,448,949; and

• consent orders of 16 May 2005 were agreed under duress by appellant as two warnings were given by trial Judge upon appellant's questioning respondent's counsel on facts presented to trial Judge.  Counsel for appellant insisted to take what was on offer.  Fearing trial Judge would dismiss the case appellant hesitatingly agreed under duress.”

1. The property proceedings came after the end of a relatively short period of marriage between the parties. They commenced cohabitation in 1997 and separated in 2002. The marriage was dissolved at the end of 2004.  There are no children of the marriage. 

1. The applicant for security of costs seeks an order that the sum of $15,000 be made available and that in the event that the monies are not made available the appeal should be dismissed. 

1. The law which governs the applications relating to security for costs is not in doubt and does not require restating in the context of this application.  It has been applied in a number of recent decisions including, amongst others, the unreported decision of the Full Court in Pederson v Vega Lira (2003) FamCA 1383. I quote from that judgment where their Honours said:

“8.       The principles governing an application for security for costs have been canvassed in recent decisions of the Full Court in Luadaka v Luadaka (1998) FLC 92-830 and Jones v Jones (2001) FLC 93-080 and in the Adult Guardian v B (2002) FamCA 874 [now reported as Adult Guardian and Mother’s Parents and B and Child’s Representative (2002) FLC 93-116]. The principles are usefully summarised in the latter case. The Full Court there pointed out that the power of the court to make an order for security for costs is to be found in section 117(2) of the Act which provides:

If, in proceedings under this act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsection (2A) and the Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.”

1. The points to which their Honours referred are conveniently, for present purposes, summarised in a headnote to Luadaka.  In the interests of clarity I will refer to each of those points which are in fact set out in the written submissions on behalf of the applicant wife in these proceedings.

1. It seems to be common ground that the appellant does not have the capacity to satisfy an order for costs if unsuccessful.  Indeed he has told us today that he is on a disability pension and what little assets he has are frozen in a dispute with his former solicitors. 

1. The second of the matters referred to in Luadaka is that the Court ought examine the prospects of success of the appeal.  I have set out the grounds of appeal because it would appear that several of them have absolutely no prospect of success because those which assert the trial Judge erred in making findings appear to misunderstand the situation because there were no findings of fact made by the trial Judge.  The trial Judge in this case made orders by consent. 

1. The prospects of success in relation to procedural unfairness created by matters that did not occur in the courtroom are probably best met by them being dealt with under an application under s 79A rather than before a Full Court.

1. So there are on the face of it limited prospects of the appeal being successful.  There is no doubt in my mind that the appeal appears to be bona fide.  The appellant has appeared before us and has addressed us in person and there is nothing suggested that would indicate that he is anything other than bona fide in wishing to bring the appeal.

1. The matter does not appear to involve any matter of public importance.  There has not been any delay in bringing the application for security for costs. 

1. In the circumstances, one then has to weigh up the hardship of making an order which may prohibit the husband bringing the appeal versus the hardship that the wife will suffer in the event that the appeal is dismissed.

1. On balance, in my view, it is appropriate that there be an order for security for costs made, but that order be in the sum of $3000, not the sum of $15,000, as is claimed.  The role of the respondent to the appeal, given the grounds of appeal, should be fairly limited and a reasonable amount on a party-party costs basis is unlikely to exceed significantly the sum of $3000.  It is always a difficult balancing exercise because the creation of a security order may well act as an effective bar to the appeal.  That effect has to be weighed against the right to bring the appeal.

1. In the circumstances I would propose to make an order requiring the husband to provide $3000 by way of security for costs within a period of two months from the date of this order, and in default, that the deposit of such funds into the trust account of the wife's solicitors to be held pending the outcome of the appeal, the appeal stand dismissed. 

FAULKS J: 

1. I agree.  I have nothing to add.

BOLAND J:

1. I agree with the reasons of Kay J.  I have nothing to add. 

KAY J:

1. The formal order, if I may pronounce it on behalf of us all, is that unless the appellant within two months of the date of this order provides security for the respondent wife's costs in the sum of $3000 to be deposited by way of cleared funds into the trust account of the wife's solicitors, the appeal stand dismissed.

1. The funds so deposited to be held in an interest-bearing account pending the outcome of the appeal and any costs orders made at the conclusion thereof. 

I certify that the 18 preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.



Associate