RBP and Ors & DEP

[2005] FamCA 696

[2005] FamCA 696

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA

AT SYDNEY   Appeal No. of EA 28 of 2005
  File No. of CAF 741 of 2003

IN THE MATTER OF:

RBP AND EP

1^st Applicant

AND

CJS

2^nd Applicant

AND

DEP

Respondent

REASONS FOR JUDGMENT

EX TEMPORE

CORAM:	KAY, COLEMAN  AND MAY JJ
DATE OF HEARING:	7th day of June 2005
DATE OF JUDGMENT:	7th day of June 2005

APPEARANCES:

Mr Blank	Of counsel for the 1st Applicant
Mr Dura	Of counsel for the 2nd Applicant
Mr Elmaraazey	for the Respondent

Name of Appeal  RBP & EP & CJS & DEP
Appeal Number  EA 28/2005
Date of Appeal hearing                   7^th day of June 2005
Date of Judgment  7^th day of June 2005
Coram  Kay, Coleman, May JJ

Catchwords:   Respondents’ application for security for costs. Principles enunciated in Luadaka v Luadaka (1998) FLC 92-830, as confirmed with respect to applications for security for costs in Jones v Jones (2001) FLC 93-080, applied – accepted that appeal bona fide, however, appellant unlikely to be able to satisfy an order for costs if appeal unsuccessful and considerable difficulty likely to be encountered in enforcing such an order which would have significant adverse impact on the respondents – no evidence of “strongly arguable case on behalf of the appellant” - Pederson v Vega Lira [2003] FamCA 1383 followed. Respondent mother likely to adopt submissions of respondent paternal grandparents at hearing of the appeal. Appropriate order that appellant provide security for costs.

Security for costs ordered in favour of paternal grandparents.
Mother’s application for security for costs dismissed.
Applicant to contribute to respondent paternal grandparents’ costs.

1. These are applications for security for costs in relation to the appeal which was instituted by the father, by filing a Notice of Appeal on 21 March 2005 against orders made by Faulks DCJ on 24 February 2005. 

2. The applicants for security for costs are the respondents to such Notice of Appeal; they being the paternal grandparents and  the mother. 

3. The paternal grandparents and the mother through their counsel seek that the father provide security for costs in the terms set out by each of them in material filed in support of their applications. 

4. The proceedings before Deputy Chief Justice Faulks related to residence and contact of the child who was born in June 1999.  The reasons for judgment of the Deputy Chief Justice make clear that his Honour found the child to have lived for the bulk of his life with the paternal grandparents and to have had contact, which included substantial contact on an interim basis, with each of his natural parents pursuant to orders of the Court. 

5. Before the trial Judge there was a welfare report.  His Honour clearly saw the relevant adults cross-examined and heard submissions. 

6. The law which governs the applications is not in doubt and does not require re-stating in the context of these applications.  It has, in recent years, been applied in a number of decisions including, amongst others, an unreported decision of the Full Court comprising Nicholson CJ, Kay and Young JJ, Pederson v Vega Lira [2003] FamCA 1383 which was delivered on 17 March 2003. In that case their Honours said, and I quote from paragraph eight of their judgment:

   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.

7. The points to which their Honours referred are conveniently, for present purposes, summarised in the headnote to Luadaka v Luadaka (1998) FLC 92-830. In the interests of clarity I refer to each of those points.

8. The first relevant matter is the means of the applicant, in this case the appellant, to satisfy an order for costs if the appeal is unsuccessful.  There is no issue here that save for such order as the Court may propose by way of security for costs, the appellant father in this case would be unlikely to have the means to satisfy an order for costs if he is unsuccessful in the appeal and ordered to pay the costs of either or both of the respondents to the appeal.

9. The second matter is the prospects of success of the appeal, in this case the father on appeal.  In Pederson v Vega Lira, their Honours made observations which, for my part I consider apply with particular force to this case. Their Honours said at paragraph 14:

   So far as the prospects of success of the appeal are concerned, it seems to me, without being definitive about it, that nothing has been shown that would suggest to me that there is a strongly arguable case on behalf of the appellant.  That does not mean that if the matter proceeds such a case may not emerge, but as at present it has not done so and since the appellant has had plenty of time to amend the grounds of appeal to indicate whether such an arguable ground exists and has failed to do so, the court is simply left with the very vague grounds on which he relies.

10.  Those observations describe what this Court has been appraised of in relation to the father's appeal and in my view provide further support for the appropriateness of an order for security of costs. 

11.  The next matter is whether the father's appeal to the Court is made bona fide.  No submissions have been made to suggest that he is not bona fide in his appeal. 

12.  It is necessary to consider whether an order for costs would be oppressive or stifle the litigation.  Their Honours in Pederson v Vega Lira made observations which, with respect, have application to the present case.  Their Honours said:

It is always an issue as to whether or not an order for security for costs would be oppressive or would stifle the litigation.  On the other hand, that has to be balanced in the other direction by the oppressive nature of the appeal if it is to proceed, in relation to the finances of the other party.  It seems to me that on the face of this case it is undeniable that an order for security for costs should be made in favour of the mother.

13.  The mother in that case was the respondent to the appeal. It is apparent that, as their Honours suggested in Pederson v Vega Lira, there must be balance.  I have referred to the inability of the father to satisfy an order for costs if his appeal is unsuccessful and a costs order made against him.  It is not disputed on behalf of the father that if the appeal is unsuccessful and the respondents to the appeal obtain orders for costs which they cannot satisfy against the father, that will have a significant adverse financial impact upon them. 

14.  The next matter to consider is whether the litigation involves a matter of public importance.  It has been earnestly urged upon this Court that the litigation does involve a matter of public importance.  As I apprehend the submissions made before the Court this morning, that matter of public importance was not one which was agitated before the learned Deputy Chief Justice.  For my part, nothing which has been put to the Court this morning persuades me that a matter of public importance is involved, however, even if it is, that would not in my view impact significantly upon the exercise of discretion in this particular application.

15.  There has not been any delay in bringing the application for security of costs and to be fair, counsel for the father does not suggest otherwise. 

16.  The concession fairly made by counsel for the father in relation to the difficulties of enforcing any order for costs against the father if his appeal fails and costs are awarded against him is also relevant in the context of the seventh matter identified in Luadaka v Luadaka, namely the difficulties in enforcing an order for costs.  That too provides further support for concluding that security for costs ought to be imposed.

17.  The last issue, the amount of the costs to be incurred, is relevant.  As was submitted by counsel for the father, the quantum of security for costs to be imposed, if any order is to be made, has a bearing on whether or not such order would be oppressive or stifle the litigation.  In the course of discussion with counsel, I think it can accurately be said that a figure of $5,000 for a one day appeal emerged as a not unreasonable provision by way of security for party and party costs of at least the respondent paternal grandparents. 

18.  Having heard counsel for the father, I have severe reservations as to whether this appeal is realistically likely to be confined within one day, whether or not the "constitutional issues" are sought to be agitated in some fashion.  I would be satisfied that a realistic estimate of the time for the appeal, having regard to submissions made on behalf of the father this morning, the material filed and the indications of other matters which appear not to have yet been agitated or, if they have, to be unlikely to be other than lengthy, would render two days’ costs for the appeal a reasonable provision.

19.  It has been conceded on behalf of the father that within three months, $5,000 could be lodged if the Court were to so order.  That concession did not, as I understood it, extend to a concession that such an order was appropriate but rather the capacity to lodge such sum. 

20.  Having regard to the relevant factors, I would be satisfied that circumstances justify an order for security for costs and would exercise the discretion to so order.  It does not automatically follow that the costs of the second day would be the same as for the first day and whilst it is perhaps arbitrary, for my part I would assess a figure of $8,000 as a reasonable sum to be imposed by way of security for costs. 

21.  There are two separate applications for security for costs.  The observations which I have thus far made apply particularly to the paternal grandparents and for my part would be sufficient to justify an order in the terms proposed in their favour.

22.  Somewhat different considerations apply in relation to the mother, it being frankly conceded by her learned counsel that upon the hearing of the appeal the mother, whose interests are for present purposes identical with those of the paternal grandparents, would be likely to adopt submissions made on behalf of the paternal grandparents.  Nothing to which the Court has this morning been referred would persuade me that it would be necessary or appropriate for an order for security for costs in favour of the mother to be made and of course to do so, given that it would be likely to result in another $8,000 being required to be lodged by the father, would impact upon an issue of whether an order for costs would be oppressive or stifle the litigation.

23.  To the extent that learned counsel for the paternal grandparents raised the prospect that if the appeal succeeded, the mother, by not being represented on the hearing of the appeal, may be at risk of orders being made adverse to her interest given the orders sought by the father in his Notice of Appeal, it can, I think, given the nature of the proceedings before the Deputy Chief Justice, the grounds of appeal and the improbability of the Full Court if any of those grounds were to find favour, being able to re-exercise the trial Judge's discretion, be almost certain that a re-hearing would be ordered before another judge and that the orders of the Deputy Chief Justice would operate as interim orders.  In those circumstances, it is difficult to suggest any necessity or even desirability for the mother to do other than signify, presumably by letter to the Court, her wish to adopt the submissions made on behalf of the paternal grandparents.

24.  I would thus decline to impose an order for security for costs on the father in relation to the mother's application. 

25.  I understand that the orders of the learned trial Judge have not been stayed.  Prima facie, given that nothing would move forward in the appeal unless and until any order for security for costs is satisfied, the probability that some three months may in fact be the time within which security is lodged would not, for my part, cause a difficulty or prospect of injustice.  For those reasons I would order, in relation to the application by the paternal grandparents that:

1.That unless the appellant within three months of the date of this order provides security for the respondent grandparent’s costs in the sum of $8000 to be deposited by way of cleared funds into the trust account of KJB Law Solicitors, the appeal stand dismissed.

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

3.The mother’s application for security for costs is dismissed.

4.The father pay $2000 towards the grandparent’s costs of the security for costs application.

5.That the direction of the Honourable Justice Finn made 21 April 2005 be varied by extending the time for filing of appeal books to 28 days after compliance with the provision of security for costs dealt with in Order 1 hereof.

I certify that the preceding
25 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Court.
A.Coleman
Associate
Date: 28/07/06