Redmond & Redmond
[2013] FamCAFC 161
FAMILY COURT OF AUSTRALIA
| REDMOND & REDMOND AND ORS | [2013] FamCAFC 161 |
| FAMILY LAW – APPEAL – Whether there is apprehension of bias – where there is no apprehension of bias – whether there was a failure to afford procedural fairness – whether a judicial officer should exclude themselves. FAMILY LAW – PRACTICE AND PROCEDURE – communication between judicial officer and parties – where all parties were not included –where submissions were made by one party but were not shown to the other – where there were no adverse consequences for the husband. FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena. FAMILY LAW – COSTS – whether one party was able to respond to submissions by the other party. |
| Child Support (Registration and Collection) Act1988 (Cth) Family Law Act 1975 (Cth) |
| Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 |
| APPELLANT: | Mr Redmond |
| FIRST RESPONDENT: | Ms Redmond |
| SECOND RESPONDENT IN APPEALS NA 62 AND NA 97 OF 2012: | Firm Y |
| SECOND RESPONDENT IN APPEALS NA 47 AND NA 89 OF 2012: | Child Support Registrar |
| APPEAL NUMBERS: | NA 47 of 2012 NA 62 of 2012 NA 89 of 2012 NA 97 of 2012 |
| FILE NUMBER: | BRC 4493 of 2011 |
| DATE DELIVERED: | 9 October 2013 |
| PLACE DELIVERED: | Sydney |
| DATE HEARD: | 2 May 2013 |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Ainslie-Wallace and Kent JJ |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 28 May 2012 10 July 2012 18 October 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 431 [2012] FMCAfam 681 [2012] FMCAfam 1117 [2012] FMCAfam 1306 |
REPRESENTATION
| FOR THE APPELLANT: | Mr Redmond in person |
| COUNSEL FOR THE FIRST RESPONDENT: | Mr Wilson |
| SOLICITOR FOR THE FIRST RESPONDENT: | Firm Y |
| COUNSEL FOR THE SECOND RESPONDENT IN APPEALS NA 62 AND NA 97 OF 2012: | Mr Wilson |
| SOLICITOR FOR THE SECOND RESPONDENT IN APPEALS NA 62 AND NA 97 OF 2012: | SMH |
| COUNSEL FOR THE SECOND RESPONDENT IN APPEALS NA 47 AND NA 89 OF 2012: | Dr Brasch |
| SOLICITOR FOR THE SECOND RESPONDENT IN APPEALS NA 47 AND NA 89 OF 2012: | DLA Piper Australia |
Orders
NA 62 and 97 of 2012
The application for leave to appeal in NA 62 of 2012 be granted in respect of order 3 made on 10 July 2012 by Federal Magistrate Howard (as he then was) and otherwise be refused.
Appeal NA 62 of 2012 be allowed in part.
Order 3 made on 10 July 2012 by Federal Magistrate Howard be set aside.
The appeal against order 1 and order 2 made on 10 July 2012 by Federal Magistrate Howard be dismissed.
The application in NA 97 of 2012 for leave to appeal is refused.
Appeal NA 97 of 2012 is dismissed.
The respondent wife and second respondent Firm Y file and serve on the appellant any submissions seeking costs of appeals NA 62 and 97 of 2012 within 21 days of the date of these orders.
The appellant husband file and serve on the first and second respondents any submissions in response to those submissions within 21 days of any submission seeking costs being served upon him.
It is directed that such submissions be no longer than 10 pages.
NA 47 and 89 of 2012
The applications for leave to bring appeals NA 47 of 2012 and NA 89 of 2012 be allowed.
Appeal NA 47 of 2012 from the order of Federal Magistrate Coates (as he then was) dismissing the husband’s application in a case filed 25 October 2011 be allowed.
The orders made on 28 May 2012 by Federal Magistrate Coates be set aside.
Appeal NA 89 of 2012 against the order of Federal Magistrate Coates made on 18 October 2012 ordering the husband pay the wife’s costs be allowed and the order set aside.
That the Court grants to the appellant husband a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by the appellant husband in relation to appeals NA 47 of 2012 and NA 89 of 2012 against the child support orders.
That the Court grants to the first respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the first respondent in relation to appeals NA 47 of 2012 and NA 89 of 2012 against the child support orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Redmond & Redmond and Ors has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Numbers: NA 47, 62, 89 and 97 of 2012
File Number: BRC 4493 of 2011
| Mr Redmond |
Appellant
And
| Ms Redmond |
First Respondent
And
| Firm Y |
Second Respondent in Appeals NA 62 of 2012 and NA 97 of 2012
And
| Child Support Registrar |
Second Respondent in Appeals NA 47 of 2012 and NA 89 of 2012
REASONS FOR JUDGMENT
In 2012 the appellant husband filed four appeals against orders made in first instance proceedings in the Federal Magistrates Court. Those proceedings are ongoing and involve property and parenting proceedings under the Family Law Act 1975 (Cth) (“the Act”) and child support matters. We heard the four appeals together.
Appeals NA 62 and NA 97 of 2012 concern orders made by Federal Magistrate Howard (as he then was) on 10 July and 22 November 2012. On 10 July 2012 the Federal Magistrate dismissed the husband’s application for contempt brought against a solicitor (the second respondent in the appeal); ordered costs against the husband in respect of the contempt application; and restrained the husband from bringing further applications in the proceedings without leave first being granted. The appeal against these orders is NA 62 of 2012.
On 22 November 2012, Federal Magistrate Howard dismissed the husband’s application and ordered the husband pay the wife’s costs and those of the second respondent, the wife’s solicitor. The husband had sought a stay of the orders of 10 July 2012 until the determination of the appeal; that the Federal Magistrate recuse himself from further hearing the matter and that the wife pay his costs of the application. The appeal against those orders is NA 97 of 2012.
The two other appeals, NA 47 and NA 89 of 2012, are against orders made by Federal Magistrate Coates (as he then was) in respect of child support. Those orders were made on 28 May and 18 October 2012.
In 2011 the husband instituted substantive proceedings in the Federal Magistrates Court for property settlement and parenting orders under the Act and child support proceedings under the child support legislation. An independent children’s lawyer has been appointed in the parenting proceedings, and correctly did not seek to be involved in these appeals.
The husband is self-represented. He is a practising solicitor. The wife is also a practising solicitor. She is employed at the second respondent’s firm Firm Y (“the solicitors”). They act for the wife. The solicitors also acted in matters concerning the estate of the wife’s deceased mother, Mrs A.
Appeal 62 of 2012
background
Relevant to the substantive property proceedings under s 79 of the Family Law Act 1975 (Cth) (“the Act”) is the fact that the wife is a beneficiary of the estate of her late mother Mrs A who passed away in June 2010.
On 13 October 2011 the husband caused the Federal Magistrates Court to issue a subpoena in the substantive proceedings under the Act directed to the Managing Partner of the solicitors, one Mr H requiring the production of documents to the court including:
2.Any and all documents, including any accounting ledgers and receipts or trust account ledgers and receipts, relating to the estate of the late [Mrs A].
3.Any and all documents, including any accounts ledgers and receipts or trust account ledgers and receipts, relating to the distribution of superannuation monies and/or superannuation death benefit of [Mrs A] from the [Company A] Pty Ltd [omitted] as trustee for the [Company A] Ltd Superannuation Fund.
It may immediately be observed that by its terms the subpoena was not confined only to documents directly relevant to any receipts by the wife from the estate, the only matter of potential relevance in the substantive property proceedings, but by its terms essentially sought all documents in the possession custody or control of the solicitors relating to the estate of the late Mrs A.
Whilst the solicitors did not take objection to the subpoena on the grounds that it was too wide and was thus oppressive or vexatious, the above observation becomes relevant to our discussion below of whether, in the language of the relevant authorities, any non-compliance with the subpoena later alleged by the husband was capable of being characterised as “an interference with the due administration of justice” or “contumacious” defiance of an order of the court.
On 1 November 2011 the solicitors filed a notice of objection to the subpoena on the basis that the husband had failed to provide conduct money in accordance with the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”). On 15 December 2011 the Federal Magistrate dealt with the solicitors’ objection to production and dismissed it. The solicitors ultimately produced documents to the court.
The husband inspected the documents on 22 December 2011. On 3 January 2012 the husband wrote to the court advising that he believed the solicitors had failed to provide all of the documents covered by the subpoena. The documents missing were said to include, but not limited to, “file notes, correspondence to clients (from [Firm Y]), and correspondence from clients to [Firm Y] in any form”.
On 13 January 2012 Mr D, a partner at the firm, filed an affidavit in response to the husband’s letter. Mr D deposed that a search of the firm’s email records “confirmed that there were electronic documents that had not been produced earlier under the Subpoena”. Those documents were printed and annexed to the solicitor’s affidavit. The documents primarily consisted of emails from the respondent wife to the solicitor about her mother’s estate.
On 14 January 2012 the husband again wrote to the court. He alleged that the solicitors had “still not disclosed all documents to the court as required by the subpoena, and [he had] the evidence to prove the same”. In both letters to the court the husband sought “punishment” and costs for non-compliance with the subpoena.
On 9 February 2012 the husband filed an application in a case containing paragraph 9 for an order sought in these terms:
CONTEMPT OF COURT – THE MANAGING PARTNER, [FIRM Y]
That the Court finds pursuant to sections 15A, 16 and 19.02 of the Federal Magistrate Court Rules 2001 (Cth) and section 17 of the Federal Magistrates Act 1999:
a.The Managing Partner, [Firm Y], guilty of contempt of Court for failing to comply with a subpoena of this Court without lawful excuse.
b.That the Court finds the contempt of court noted in paragraph [9.a] above is continuing.
c.That the Court further directs [Firm Y]:
i.attends the Court to answer the allegation; and
ii.provides security, as directed by the Court, for his or her attendance before the Court to answer the allegation.
d.That the Court makes an order for the punishment of [Firm Y] for contempt of Court.
e.That the Court orders [Firm Y] to immediately comply with the subpoena or face ongoing contempt of court charges.
f.That the Court orders [Firm Y] to pay the Applicant’s costs incurred by the Applicant for [Firm Y’s] failure to comply with the subpoena.
g.That the Court orders [Firm Y] pays the Applicants [sic] costs of this Application of Contempt of the Court by the Applicant, assessed on an indemnity basis.
For reasons which will be discussed further, it bears emphasising that the husband elected to frame his application as an application for criminal contempt pursuant to s 17 of the then Federal Magistrates Act 1999 (now the Federal Circuit Court of Australia Act 1999) nominating the managing partner (Mr H) as the contemnor. That it was so framed is made clear not only by the terms of the order as sought set out above but by the material the husband filed in support of the application including the letter attached to his affidavit filed in support specifically referred to by the Federal Magistrate at paragraph [10] of the reasons which was in the following terms:
I believe that Mr [H], Solicitor of [Firm Y] has a blatant disregard for the Court by not complying with this subpoena as requested by myself on a number of occasions, and after meeting with myself or before the Court, the Court must exercise its power to punish Mr [H] for his failure to comply with the subpoena. I believe Mr [H] is clearly in contempt of Court, and must be punished to the full extent available to the Court.
I also wish to advise that as well as seeking punishment for [Firm Y] non-compliance with the subpoena; I also wish to seek an order for costs for Mr [H’s] non-compliance with the subpoena.
Thus, rather than seeking orders that specific documents be produced; or alternatively framing an application under s 112AD of the Act for the imposition of a sanction for failure to comply with an order; the husband elected to mount an application against Mr H to have him personally dealt with for criminal contempt pursuant to s 17.
On 4 April 2012 the managing partner of the solicitors filed an affidavit in response to the husband’s initial complaint to the court. He outlined the steps he had taken to comply with the subpoena and deposed that, to the best of his knowledge, he was not aware of any other documents that had not been produced and asserted that the solicitors had therefore complied with the subpoena.
On 5 April 2012 the husband filed a further affidavit alleging non-compliance. He complained that the documents filed by the solicitors did not include responses from the managing partner to the respondent wife’s emails, and annexed one such email. The husband also said the emails disclosed by the firm only showed correspondence to 28 November 2010, whereas other documents before the court demonstrated the respondent wife’s mother’s estate was not finalised until after June 2011.
The husband’s application was heard on 16 April 2012. During the course of the hearing the husband continued to maintain that the solicitor had not complied with the subpoena. The Federal Magistrate told the husband that he must write to the solicitor in very specific terms setting out the documents that he asserted had not been disclosed.
The Federal Magistrate then said to the solicitor (transcript 16 April 2012, page 34) :
… He has got 28 days to prepare a detailed letter containing a list specifically identifying documents that he says have not been disclosed. I just want you to answer that in correspondence. I want both of those letters then to be sent to my associate. I will consider them in chambers, all right. If you answer each of his queries in his letter I will not require you to come back, and I will make orders in chambers dismissing the contempt application.
The solicitor raised the question of costs and the Federal Magistrate said:
Yes, that’s right, so you should also at that stage make a submission on the costs…And I will hear from [Mr Redmond] by another submission, in writing, on the costs – to be restricted to no longer than two pages each, by the way, and I will make the decision in chambers on the costs question, all right …
The Federal Magistrate ordered:
9. That within 28 days of the date of this Order the Applicant provide to Mr [D], solicitor acting on behalf of [Firm Y], a letter which includes a detailed list specifically identifying documents which have not been disclosed. A copy of the letter is to be forwarded to the Court with a submission consisting of no more than two pages in relation to costs.
10. That Mr [D] is to respond to the Applicant within 28 days thereafter. A copy of the letter is to be forwarded to the Court with a submission consisting of no more than two pages in relation to costs.
The orders noted that the contempt application and the issue in relation to costs would be determined in chambers.
The letters were exchanged in accordance with the order. Costs submissions were sent to the Federal Magistrate but not exchanged.
The Federal Magistrate determined the matter and on 10 July 2012 made the following orders:
1. That the application for contempt against [Firm Y] filed 9 February 2012 be dismissed.
2. That the Applicant pay costs to [Firm Y] in the sum of $3,490 within fourteen (14) days of the date of this Order.
3. That the Applicant is prevented from filing any further application in relation to these property and/or parenting proceedings without first obtaining the leave of a Federal Magistrate in Chambers.
The Federal Magistrate’s reasons of 10 July 2012
The husband appeals from all three orders. As will later be seen, it is our view that order 3 was made without proper notice to the husband and that the appeal should be allowed in that respect only.
The Federal Magistrate observed that the husband had delivered to the court a submission in relation to costs and a copy of a letter of 14 May 2012 sent by him to the solicitors in compliance with order 9 made on the 16 April 2012 [13].
It is clear from his Honour’s reasons that the solicitors also provided documents to the court in compliance with the orders of 16 April 2012.
His Honour said:
17. I agree with the submission made by [Firm Y] in their letter of 8 June 2012 addressed to the Applicant (copy forwarded to the Court). The letter of the Applicant dated 14 May 2012 (incorrectly referred to as 15 May 2012 by [Firm Y]) “contains generalised and speculative categories of documents of alleged non-disclosure”. The generalised categories of documents referred to in the Applicant’s letter are not documents which are relevant in the proceedings between the Applicant and the Respondent. Evidence of the wife’s inheritance from her late mother’s estate is relevant. The categories of documents sought by the Applicant go much further than that. He unreasonably seeks the minute details pertaining to the conduct of the estate file by [Firm Y].
18. The letter from the Applicant dated 14 May 2012 does not comply with the Court Order contained in paragraph 9 of the orders made 16 April 2012.
(original emphasis)
His Honour concluded at [20] that the solicitors had complied with the subpoena.
Turning to the husband’s contention that the solicitors were in contempt of the court, his Honour said:
25.In the present case it cannot be said that the actions of [Firm Y] were “glaring, notorious or scandalous”. The actions of that firm did not and do not challenge or call into question the authority of the Court. …
(original emphasis)
His Honour found that, “[t]he Applicant…had not established beyond reasonable doubt that a contempt of Court has occurred. Indeed I am not satisfied that [Firm Y] have contravened any Order of the Court” [27].
The Federal Magistrate considered that the husband’s application for contempt was misconceived but also vexatious and said that the husband’s pursuit of the application was “…“the irresponsible pursuit of litigation” by someone who should know better, namely the Applicant, a solicitor” at [30]. (original emphasis).
His Honour referred to the husband’s bringing of an application that the wife be dealt with for contempt asserting that she had failed to comply with Order 7 made on 16 April 2012 by which she was directed to provide information to the husband about her entitlement under her mother’s estate [32]. He found at [34] that the wife had adequately complied with the order of 16 April 2012 and found that the husband’s actions were “vexatious” [36].
grounds of appeal
There are 17 grounds of appeal. The grounds address several issues:
· a denial of procedural fairness and apprehended bias by the Federal Magistrate (Grounds 1 and 5)
· the manner in which the Federal Magistrate considered the costs application (Grounds 2, 12, 13 and16)
· the determination of the husband’s subpoena addressed to the solicitors (Grounds 3, 4 and 6)
· the Federal Magistrate’s dismissal of the husband’s contempt application against the solicitors (Grounds 7 and 8);
· the Federal Magistrate’s dismissal of the husband’s contempt application against the wife (Grounds 9,10 and 11);
· the Federal Magistrate’s order that the husband be prevented from filing further applications in the proceedings with the wife (Grounds 14 and 15); and
· the Federal Magistrate’s failure to determine the other applications included in the husband’s application of 9 February 2012 (Ground 17).
As many of the grounds including 3, 4, 6, 7, 8 and 9 as supplemented by the particulars contained in the husband’s summary of argument purport to articulate challenges in one form or another to the Federal Magistrate’s disposition of the husband’s contempt application it is convenient to first deal with this aspect of the appeal.
In Witham v Holloway (1995) 183 CLR 525 McHugh J observed of the differences between civil and criminal contempt (at 538-9):
Although criminal contempts take many forms, their characteristic attribute is an interference with the due administration of justice either in a particular case or as part of a continuing process. Defiance of the court or its procedures, publication of matters scandalising the court, actions calculated to prejudice the fair trial of a pending case, threats to parties or witnesses and misconduct within the court are examples of criminal contempts. Civil contempts, on the other hand, are concerned with failures to comply with judgements or orders. of the courts but civil and criminal contempt overlap. Thus, disobedience to the order of a court constitutes criminal contempt when the disobedience is contumacious. Defiance of the court’s order renders criminal what would be otherwise civil contempt… where non-compliance with a judgement or order goes beyond mere breach and involves misconduct, civil contempt also has ‘a penal or disciplinary jurisdiction [that is] exercised by the court in the public interest’
(footnotes omitted)
As we have already emphasised, by his application in a case the husband did not seek enforcement of the subpoena by seeking an order for production of specific documents; nor did the husband apply under s 112AD of the Act for sanctions for contravention of an order. He mounted an application for criminal contempt and directed it personally to Mr H and sought that the Federal Magistrate exercise its power to punish for contempt under s 17 of the Federal Magistrates Act 1999.
The husband could have been in no doubt of the availability of s 112AD given the specific reference to that section on the face of the subject subpoena.
In both his grounds of appeal (particularly ground 4) and his summary of argument the husband argues that the Federal Magistrate was wrong to question whether further documents the husband sought to have produced pursuant to the subpoena were of any relevance to the substantive proceedings. However, the husband’s application before the Federal Magistrate was to have Mr H personally dealt with for contempt and “punished to the full extent available to the Court”.
Given the nature of the husband’s application it was fundamental for the Federal Magistrate to consider the relevance to the substantive proceedings of further documents the husband contended ought to have been produced pursuant to the subpoena in order for the Federal Magistrate to determine the gravity of any alleged disobedience of Mr H or whether any disobedience of Mr H to the order of the court constituted disobedience which was “contumacious”.
Neither in the proceedings below, nor in argument before us, was the husband able to demonstrate the existence of any document directly relevant to the substantive proceedings which had not already been produced pursuant to the subpoena. Indeed, as Ground 4 and the husband’s summary of argument demonstrates (paragraphs 26, 27 and 28) the husband seeks to divert attention from the essential conclusion that the husband could not demonstrate below the existence of documents relevant to the substantive proceedings in the possession of the solicitors not produced under the subpoena.
The authorities, including those referred to by the Federal Magistrate, emphasise the serious nature of an application for contempt and that it is a remedy of last resort. (See for example, Ibbotson & Wincen (1994) FLC 92-496 at p81,162; Sahari & Sahari (1976) FLC 90-086 at p75,407 & p75,410; Helliar & Helliar (1980) FLC 90-805 at pp75,075-75,076).
Relevant to the seriousness of the application, as the Federal Magistrate himself identified in his reasons [28] is that the alleged contemnor Mr H is a legal practitioner and principal of a firm. There were obvious potential ramifications for Mr H, beyond any penalty imposed by the Court if, as a legal practitioner, he was found guilty of contempt.
Rule 19.02 of the then Federal Magistrates Court Rules 2001 governed the procedure for the husband’s contempt application, subject to the Court’s overriding power to dispense with compliance with rules or to make a prevailing order or direction (Rule 1.06).
Notably, sub-rule (7) of Rule 19.02 provides:
After hearing evidence in support of the allegation, the Court may:
(a)if the Court decides there is no prima facie case, dismiss the application; or
(b)if the Court decides there is a prima facie case:
(i)invite the person to state his or her defence to the allegation; and
(ii)after hearing any defence, determine the charge.
As is clear the rules contemplate an applicant in a contempt application establishing a prima facie case failing which the court may dismiss the application. Bearing in mind that the husband was pursuing an application for criminal contempt against, and punishment of, Mr H “to the full extent available to the court” pursuant to the power in s 17 of the Federal Magistrates Act 1999 the husband had the onus of proof identified by the Federal Magistrate in his reasons.
It is tolerably clear that unless the husband could demonstrate, on the criminal standard of proof, that the alleged non-compliance with the subpoena constituted “an interference with the due administration of justice” or “contumacious” defiance of an order of the court or, expressed in the language in s 112AP(1)(b) of the Act involved “a flagrant challenge to the authority of the court” the husband could not establish a prima facie case for contempt.
We reiterate that whilst the husband challenges the Federal Magistrate’s approach of considering the relevance to the substantive proceedings of the documents the husband alleged had not been produced, a challenge which is misconceived and which we reject, he does not challenge the Federal Magistrate’s findings and conclusions to the effect that no document relevant to the substantive proceedings had not been produced. We also reiterate that in the proceedings below the husband likewise did not agitate that documents directly relevant to the substantive proceedings (as opposed to the subpoena) had not been produced.
For the reasons we have already discussed whilst that position pertained the husband was never in a position to establish a prima facie case for contempt.
The husband argues that the Federal Magistrate was wrong to find that the letter sent by him did not comply with the order of 16 April 2012 when the husband had provided affidavit evidence of the disputed documents (Ground 3). Further, he asserts that the Federal Magistrate erred in considering whether the disputed documents were relevant to the substantive proceedings (Ground 4). The husband contends that the Federal Magistrate erred in finding that the solicitors had complied with the subpoena (Ground 6).
In his written argument, he asserts:
25. The appellant provided to the court through the affidavit materials a wealth of information that [Firm Y] had not supplied documents required under the subpoena to the court. Copies of email documents relevant to the subpoena were supplied to the court, which were not in turn supplied by [Firm Y] under the subpoena.
The solicitors submitted that the letter from the husband sent pursuant to order 9 of 16 April 2012 did not provide the required specificity necessary to identify documents asserted not to have been produced.
The Federal Magistrate found, accepting the solicitors submission at [17] that the husband’s letter, rather than specifying documents “contains generalised and speculative categories of documents of alleged non-disclosure.” This was a matter of fact to be determined by the Federal Magistrate.
The husband asserts that this finding of fact is wrong. The written argument refers to the affidavit filed by him which, he asserts, provided the court with a “wealth of information” that the solicitors had not complied. We observe that the affidavit was before the court at the time that the Federal Magistrate made the order that the husband provide further detail of documents he asserted were relevant and available.
It is important to observe that because other findings of fact may have been open on the evidence before the Federal Magistrate does not demonstrate that the finding of fact complained of was thus not open or available to his Honour. That is not the test. The test is whether the finding of fact or findings of fact material to the exercise of discretion have been shown to have not been reasonably open to the Federal Magistrate (see Edwards v Noble (1971) 125 CLR 296 at 304). It will be immediately apparent that the test thus raised is one which is not lightly or readily satisfied.
The husband has not demonstrated any error in his Honour’s fact finding.
In considering the adequacy of the husband’s letter and the solicitors’ response, the Federal Magistrate said at [17]:
… The generalised categories of documents referred to in the Applicant’s letter are not documents which are relevant in the proceedings between the Applicant and the Respondent. Evidence of the wife’s inheritance from her late mother’s estate is relevant. The categories of documents sought by the Applicant go much further than that. He unreasonably seeks the minute details pertaining to the conduct of the estate file by [Firm Y].
While it is correct that the solicitors had not raised an objection to production based on the class of documents sought, they maintained that there were no documents of the nature identified by the husband, or that the lack of specificity prevented them from further compliance.
The Federal Magistrate’s finding at paragraph [17] of the reasons makes it plain that the Federal Magistrate determined that the husband had not, in compliance with his order, specified the documents said to be not produced.
The determination of this ground does not require us to engage with this submission any further. The Federal Magistrate had directed the husband to specify the documents he asserted existed and had not been produced. The solicitors asserted that the document did not do that. The Federal Magistrate agreed with their submission and found that they did not. The solicitors maintained and had for some time said that they held no further documents referrable to the subpoena.
The husband further challenges the Federal Magistrate’s findings that the solicitors had complied with the subpoena, and that the husband had not proved that they were in contempt of the court in not answering the subpoena (Ground 7). He further claims that the Federal Magistrate’s finding that his application for contempt was “misconceived, frivolous and vexatious” (Ground 8). The written argument does not advance the grounds, merely repeating the husband’s assertion that the solicitors had not complied and were in contempt, without any attempt to demonstrate that this submission has any real basis.
The findings of the Federal Magistrate were entirely open to him. The husband has advanced nothing that would suggest otherwise. He has failed to make out the grounds supporting this issue.
Costs of the contempt application (Ground 16)
The husband’s appeal also challenges the Federal Magistrate’s order that he pay the solicitors’ costs referrable to the unsuccessful contempt application.
The relevant parts of the reasons are as follows:
28.The Applicant pursued an application for contempt of Court. This is an extremely serious application in circumstances where the Respondent is a firm of solicitors. Furthermore, the Applicant himself is a solicitor and would be well aware of the seriousness of the charge of contempt by one practising lawyer against another.
29.The Applicant’s application for contempt filed 9 February 2012 is dismissed. The Applicant should pay the costs of the application to [Firm Y] in the amount sought by that firm totalling $3,490. The Applicant has fourteen days to pay those costs.
30.The application brought by the Applicant for contempt was misconceived. Indeed I believe it goes somewhat further. There was no reasonable basis for filing an application for contempt against the firm [Firm Y]. I believe that the application for contempt filed by the Applicant is vexatious. In other words, I consider the application to be “the irresponsible pursuit of litigation” by someone who should know better, namely the Applicant, a solicitor. (Note the explanation of the word “vexatious” given in The Atlantic Star [1974] A.C. 436 at 477 per Lord Kilbrandon – referred to by Brennan J in Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197.) In my view the “irresponsible pursuit of litigation” includes the irresponsible pursuit of applications within litigation.
The written summary of argument on this point asserts:
45. ...the Magistrate would not award costs in this matter for self represented litigants and is inconsistent with his costs determinations.
The submission then extracts a passage from the transcript of 16 April 2012 in which, in response to the husband’s claim for costs against the solicitor, the Federal Magistrate enquired of him what costs he could receive since he did not have a lawyer.
The written argument then asserts:
Mr [D] did not have a lawyer either, yet the Magistrate awarded
Mr [D] his costs. It is submitted that the Magistrate erred in his discretion to award costs in this matter.
We must first observe that the basis of the husband’s argument, to the extent that it rests on an assertion that the Federal Magistrate would not have awarded costs to a self represented person, is frankly wrong. There is abundant authority of this court to the effect that being unrepresented or indeed indigent is no bar to being subject to an order for costs.
It is obvious that the Federal Magistrate’s comments to the husband in relation to his claim for costs referred to him not having incurred professional costs of engaging a lawyer. The husband had sought to have the solicitors dealt with for contempt. He was entirely unsuccessful. It was a matter for the Federal Magistrate’s discretion as to whether costs would be awarded against him. The husband has not demonstrated any error in the exercise of that discretion.
The husband’s contempt application against the wife (Grounds 9, 10 and 11)
By his application in a case filed on 9 February 2012 the husband sought an order that the wife make disclosure of certain classes of documents. The classes of document comprised:
a. any and all documents relating to her ability to make the settlement offer of 29 August 2011 to the husband;
b. any and all documents relating to any monies received, whether directly or indirectly (ie. any payments of monies made on behalf of wife) from [Company A] and/or [Company A Group] and/or [Mr J A] and /or [Mr R A] since separation of the parties;
c. Detailed list of all furniture, household contents and jewellery (including valuations of the same) owned by the late [Mrs A] left to the wife in the estate of [Mrs A].
d. Details of all monies received by the wife from the disposal of any marital assets since separation of the parties.
As we have already discussed at some length, the application was heard by the Federal Magistrate on 16 April 2012. In the course of argument, the husband did not press for production of information sought in the first category. The Federal Magistrate ordered:
7. That within 28 days of the date of this Order the Respondent provide the Applicant:-
(a) any and all documents relating to any monies received, whether directly or indirectly (i.e. any payments of monies made on behalf of the wife) from [Company A] and/or [Company A Group] and/or [Mr J A] and /or [Mr R A] since separation of the parties;
(b) detailed list of all furniture, household contents and jewellery (including valuations of the same) owned by the late [Mrs A] left to the wife in the estate of [Mrs A];
(c) details of all monies received by the wife from the disposal of any marital assets since separation of the parties.
On 15 May 2012 the husband sent an email to the Federal Magistrate in chambers observing:
On 16 April 2012, Magistrate Howard made orders for the Respondent to undertake certain disclosure. The Respondent disclosed certain documents yesterday, but I do not believe sufficient disclosure has been made and the Respondent is in contempt of Court.
Rather than file an Application in a Case for contempt of Court application, I would like to request if his Honour could consider a contempt application against the Respondent in Chambers on 12 June 2012, in relation to her non-disclosure of documents requested by his Honours orders on 16 April 2012. On 12 June 2012, his Honour will be considering a contempt of court application in relation to a subpoena I issued that I do not believe production was sufficient (by [Firm Y]).
The husband further indicated that he had filed an affidavit (a copy of which he attached to the email) which he said supported his assertions.
It appears that there was no response from the Federal Magistrate’s chambers to this unorthodox request that his Honour consider the allegation of contempt on the part of the wife in chambers.
The affidavit filed on 15 May 2012 asserted that the wife had not made proper disclosure in compliance with order 7 of 16 April 2012.
The Federal Magistrate considered this application in the reasons of 10 July 2012 and said:
31. My view that the Applicant’s application for contempt is vexatious is further strengthened by what happened next. The Applicant has sought to file a further application for contempt of Court this time against the Respondent. Those documents were forwarded to the Court by email on 15 May 2012.
32. The further application for contempt, this time sought to be filed by the Applicant against the Respondent is, again, vexatious. It relates to the alleged non-compliance by the Respondent with the requirements of paragraph 7 of the Order made on 16 April 2012 (as Amended on 2 May 2012). In attempting to have the Court consider an application for contempt against the Respondent – the Applicant e-filed an Affidavit on 15 May 2012. A copy of the material forwarded to the Court (including the Affidavit e-filed 15 May 2012) will be forwarded to the Respondent and the Independent Children’s Lawyer. It is relevantly useful to note annexure CER-1 to that Affidavit sworn by the Applicant. It is a letter dated 14 May 2012 from the Respondent to the Applicant. In that letter the Respondent addresses the requirements of paragraph 7 of the orders made by this Court on 16 April 2012. The letter from the Respondent is two and a half pages long. In addition, the Respondent forwarded to the Applicant forty-seven pages of annexures. Those annexures included a valuation from [S Jewellers] (...) owned by the Respondent’s late mother. I note the valuation of the items in their current condition is $1,399.90.
33. Further, I note that one of the annexures to the Respondent’s letter dated 14 May 2012 (in deed the last annexure) is a letter from [Firm Y] to the Registrar of the Social Security Appeals Tribunal dated 28 October 2011. In that letter [Firm Y] (the solicitors for the estate of the late [Mrs A]) explained in some detail the entitlements of the Respondent pursuant to her late mother’s Will.
34. I consider that the Respondent has adequately complied with paragraph 7 of the orders made on 16 April 2012.
35. In the event that the Applicant considered that further disclosure was required by the Respondent – the correct application would have been an application for further and better disclosure.
His Honour went on to observe that the husband’s bringing of the contempt application was vexatious and had no prospect of success. He found that the wife did not in any way flagrantly challenge the authority of the Court [36].
The grounds challenge the Federal Magistrate’s findings and assert that the Federal Magistrate found that the “Appellant could not file an application for contempt against the Respondent”.
Dealing first with the assertion that the Federal Magistrate found that the husband could not file an application for contempt against the wife; as the extracted passages from his Honour’s reasons demonstrate, he made no such finding. He did however conclude, quite correctly in our view, that the bringing of such an application, absent the husband taking any other step to secure compliance in circumstances where he alleged non-compliance, was inappropriate.
Again, the husband’s written argument is unhelpful in assisting us to understand his argument. He asserts at paragraph 42; “An application for further and better disclosure is not an application that is usually made before this court and the Magistrate’s suggestion so such is incorrect…”. As the husband provides no basis for such an assertion, we will not consider it further.
To make an application that a court deal with a litigant for contempt is one that is properly regarded as a serious step. It is an application which, as the Federal Magistrate correctly observed, puts the person asserting the contempt to proof that the actions of the alleged contemnor was a “flagrant challenge to the authority of the court”.
Nothing in the matters put in argument, whether in writing, orally or in the material on the appeal demonstrates that the wife had not complied with the orders and his Honour’s conclusion that she had was one well open to him.
Denial of procedural fairness and Apprehended Bias (Grounds 1 and 5)
Although, as we shall shortly discuss, the husband asserts that the Federal Magistrate did not afford him procedural fairness in the way in which he dealt with the costs submissions and his determination of that issue, the husband further asserts that apprehended bias affected the conduct of the proceedings on 16 April 2012.
We also observe that to a significant degree, the husband also asserts apprehension of bias in NA 97 of 2012 which relates to his application before the Federal Magistrate that he recuse himself from further hearing. There is thus a degree of overlap between the two appeals.
Apprehended bias (Ground 5)
In this ground the husband asserts that the Magistrate erred in not disqualifying himself from hearing the matter because of apprehended bias.
The basis of this ground rests in various verbal exchanges between the Federal Magistrate and the husband in the course of the proceedings on 16 April 2012. The husband refers to one exchange with the Federal Magistrate in dealing with the issue of the asserted non-compliance by the solicitors with the subpoena.
In the husband’s written argument, he extracts the impugned comments from the transcript, however some context is necessary to consider the ground properly.
The husband had addressed the Federal Magistrate on his contention that the solicitors had not complied with the subpoena. Mr D who was then representing the solicitors observed that the husband had failed to provide an affidavit which specified what documents were said to be missing.
The Federal Magistrate said: (transcript 16 April 2012, page 33):
HIS HONOUR: Mr [Redmond], what can the court do in circumstances where a solicitor, Mr [D], has sworn that he has complied with the subpoena and it has been produced to the court, and there are no other documents. How can you convince the court that there are other documents?
MR [REDMOND]: That’s fine, that’s fine, that’s fine, I’m quite happy, your Honour. I believe that Mr [D] has mislead the court – there are other documents there. I can – and I will show you, I will give you some examples if you would like to – once we have seen
HIS HONOUR: Well, first of all, I really think to be fair to Mr [D], what you should do is provide a list of what you say is missing, a specific list.
The husband then referred to certain documents that he said had not been produced. The Federal Magistrate foreshadowed making an order that the husband provide the solicitors with a specific list of documents that he contended had not been produced. The Federal Magistrate continued (transcript 16 April 2012, page 34):
HIS HONOUR: Well, what I would like you to do – I think you really do need to be very specific, okay, and you need to set out a detailed letter. I will give you 28 days to do it. And you need to list item by item what further documents you say have not been disclosed, and then Mr [D] can answer that letter specifically, because in talking in terms of generalities or on the run at an application like this, it doesn’t give anyone a chance to properly prepare. You may be right, there may be some other items that he has missed. Then again, you may be wrong, he may come back next time and say this is all covered.
(emphasis added)
In his written argument, the husband asserts:
30. Although it is not inappropriate for a judicial officer to highlight matters such as this, these comments, it is submitted, were very pointed and unbalanced, indicative of prejudgment on the part of the Magistrate.
31. The reference to sworn affidavit material of Mr [D] and the courts reliance on such without hearing from the appellant on the issue is objectionable.
32. These statements, it is submitted, convey to a reasonable lay observer that the Magistrate had come to a prejudged view.
33. The language used by the Magistrate i.e. “How can you convince the court that there are other documents?” is tantamount to an expression of disbelief on the part of the Magistrate in response to the appellant’s desire to press forward with the application.
(original emphasis)
We reject those submissions. The Federal Magistrate’s comments were made in the course of exploring the husband’s contention about the subpoena. Although omitted from the husband’s written argument, the Federal Magistrate’s words which we have emphasised in paragraph 47 fly in the face of any suggestion of prejudgment.
We observe that the husband made no comment or complaint to the Federal Magistrate about those words at the time of the hearing on 16 April 2012 or at any time before the filing of the appeal NA 62 of 2012. In oral argument during the hearing of the appeal, the husband said that at the time the words were spoken he “wasn’t aware at the time that that could constitute bias” (transcript of appeal proceedings 2 May 2013, page 18). He further said that after receiving the reasons for decision he ordered the transcript and had a “close look” at it. The husband agreed that at the time the words were said, they caused him no concern and nor did he have any concerns until he read the transcript of the April proceedings which he thought he obtained in early November 2012.
He said (transcript of appeal proceedings 2 May 2013, page 22):
Well, once I had lost the appeal, I started preparing for the appeal. I started getting material for the appeal which included a copy of the transcript. Once I looked through the transcript and then it occurred to me that the documents – because when – the thing with bias is that, as you know, I said before that it’s cumulative effect. So when I first looked at whether there could be bias in relation the documents not being served on these parties, I thought this is a bigger picture. Is this a bigger picture or was there further issues of bias that day? When I looked into it further that’s when I found these instances where there could be, sort of, could just be bias.
There is no doubt that a party is not entitled to wait until an appeal to first raise the issue of bias (see Vakauta v Kelly (1989) 167 CLR 568 at [572]).
Lest the husband think that this rule does not concern him because he was acting for himself, we emphasise that he is a qualified solicitor in private practice.
In any event, the husband has not made out any basis for asserting apprehended bias and we reject it. While not strictly necessary, had we not so found, in our view, his failure to bring the impugned words to the Federal Magistrate’s attention at the earliest reasonable opportunity would, in the circumstances of this case, deprive him of the right to now raise it.
Failure to afford procedural fairness (Ground 1)
This ground deals with the circumstances in which the Federal Magistrate received the costs submissions pursuant to orders 9 and 10 made on 16 April 2012.
The ground asserts that the Federal Magistrate failed to afford the husband procedural fairness because the husband did not have an opportunity to see the solicitors’ costs submission and respond to them.
In his written argument the husband said:
17. The Magistrate elected to make his decision in chambers. There was no opportunity for the parties to confirm with the Magistrate whether they had received materials from either party or not, thus leading to a situation whereby a party may be taken to be at a disadvantage by not having available to them the information supplied to the Magistrate by the other parties. This issue raises serious concerns of procedural fairness and the basis [sic] right of a litigant to be heard.
…
19. Further, the 2nd respondent did not provide the appellant at any stage of the proceeding a copy of their submissions on costs. The 2nd respondent being an experienced firm of solicitors should have as a matter of course attended to this basic requirement, but failed to do so…
He further contended:
21. It is a fundamental principle of judicial conduct that no communications should pass between a judge and a party or witness, or that party’s representative, without the knowledge and consent of the other party. Clearly the costs submissions by [Firm Y] were not passed on to the appellant. It further raises matters of bias and the ability of the Magistrate to provide a fair hearing to the appellant…
Orders 9 and 10 of 16 April 2012 do not, by their terms, require the costs submissions to be exchanged between the parties. It is uncontentious that the husband who was by reason of order 9 required to provide his costs submissions first, did not send them to the solicitors nor, when he did not receive any submissions from the solicitors, did he enquire of them seeking a copy. In the course of oral argument on the appeal, the husband said that he did not give the solicitors his submissions because he was not prepared to give them a tactical advantage.
We point out that the husband while he maintained on a number of occasions before the Federal Magistrate that he was not a “litigator” but a “conveyancer”, could not himself be ignorant of the “fundamental principle” to which he referred in his submissions and on which he relied.
In essence, the husband’s argument was that the Federal Magistrate had an obligation to ensure that the parties exchanged the costs submissions, and in failing to do so ought to have realised that to do otherwise gave rise to an apprehension of bias and should have, of his own volition, disqualified himself from the proceedings. The submission needs only to be articulated to reveal its flawed basis.
We further observe that, as is made clear by reference to the transcript of the proceedings in November 2012 being the husband’s application that the Federal Magistrate disqualify himself, the Federal Magistrate was unaware that the costs submissions had not been served by each party on the other.
This ground is entirely without foundation and, it seems rests on a circumstance of the husband’s creation. He could have requested the solicitors’ submissions, he could have enquired of the Federal Magistrate’s chambers if submissions from the solicitors had been received, he could have sent his submissions to the solicitors. He did none of those things.
We do observe that it is unfortunate that the orders and apparent preferred course of the Federal Magistrate was to consider the matter in chambers and have documents sent to chambers rather than being filed and served in the usual way and the matter disposed of in open court. The arrangements put in place by the Federal Magistrate should not be regarded as the norm. In this case there were no adverse consequences for the husband such that it could be said justice was denied.
The Federal Magistrate’s errors in determining the costs issue (Grounds 2, 12, 13 and 16)
In his reasons at [14] the Federal Magistrate comments on the costs submissions forwarded by the husband. After observing that the intention of the order was that the submissions as to costs were to be limited to two pages, he remarked that while the husband’s submission on costs comprised two typed pages, annexed to those submissions were a further 323 pages. The Federal Magistrate continued:
15. There is no justification for the Applicant to lodge with the Court such a large volume of documents in a situation where the Court had specifically requested a two page submission concerning the issue.
In Ground 2, the husband asserts error in this determination, arguing that he submitted a two page submission on costs but continuing; “The Magistrate set no limit set [sic] on the supply of any other documents to the court.” The husband asserts that “the comments by the Magistrate that the appellant had not complied with his orders are simply incorrect.”
The husband does not suggest that the Federal Magistrate did not consider his submissions. We do not propose to deal with this assertion other than to observe that it does not raise any demonstrable error. The Federal Magistrate was correct when he said at [16] “[t]he matter is straightforward”. The husband has not made out any foundation for asserting a failure to afford procedural fairness or an apprehension of bias.
In ground 12, the husband asserts that he was denied procedural fairness because the Federal Magistrate “did not allow the Appellant the opportunity to respond to [Firm Y’s] submissions of 8 June 2012, which was received by the Appellant the day after the matter was to be heard by the Magistrate in chambers”.
The husband’s written submissions assert that in deciding to determine the costs application in chambers, the Federal Magistrate did not give the husband an opportunity to “view and respond to submissions of the 2nd Respondent before the matter was scheduled to be determined….” The submission continues and claims that in not receiving the submissions of the solicitor, the husband was disadvantaged and thus denied procedural fairness.
As we have already indicated, the husband deliberately chose not to serve his submissions on the respondent solicitors. Further, as we have said, the Federal Magistrate was unaware that the husband and the solicitors had not exchanged their submissions. It is difficult to see, in circumstances where the husband is a solicitor, how he suffered any injustice.
In Ground 13, the husband claims that he was denied natural justice or procedural fairness because the Federal Magistrate “did not advise the Appellant or any of the parties that the date for the matter to be heard in chambers had been changed from 12 June 2012 to 10 July 2012, until after the decision had been made.”
The husband’s written submission argues that had he been told that the decision in chambers was to be made on 10 July 2012 it would have “allowed the appellant time to make submissions in relation to documents provided by [Firm Y]”.
The submissions in relation to Ground 12 and Ground 13 seem to indicate that the husband did receive some documents from Firm Y, however, it is unnecessary to delve further into that issue. The basis on which the husband asserts that a certain date was set for the matter to be considered in chambers is not articulated and in any event, we are unable to see what prejudice could possibly have attached to the husband by the decision apparently being made on a date which was later than that on which he expected it to be made.
Rule 15.03 of the Federal Magistrates Court Rules 2001 provided that the Court or a Federal Magistrate may make a decision in a proceeding without an oral hearing if the parties to the proceeding consent to the making of the decision without an oral hearing.
As we have already noted, in the proceedings below there was an oral hearing on 16 April 2012. The Federal Magistrate made it clear at that hearing, when making directions as to the various further material to be provided, that he proposed to determine the contempt application and the consequent costs issue in chambers. That proposed course obviated for the parties a further attendance at court. No party, including the husband, then raised any objection to the course the Federal Magistrate proposed. The order of 16 April 2012 bore a notation as to the course proposed when it issued and no party, at any time subsequent to 16 April 2012, agitated otherwise than the course proposed and noted on the order. In these circumstances it is arguable that the parties, including the husband, consented, at least implicitly to the determination of the costs issue in chambers without any (further) oral hearing.
However, even if it cannot be concluded that the parties gave consent within the meaning of the rule, the husband’s contention about the costs determination, putting that at its highest, was that he was denied natural justice because he was not afforded an opportunity to respond to the submissions of the solicitors. Notably, the husband seeks remitter of, inter alia, the costs issue to the now Federal Circuit Court.
In circumstances where the husband was wholly unsuccessful on what was found to be an utterly unmeritorious application for contempt the husband does not identify or articulate any meaningful response he could make to support the possibility of a different result on the costs issue. Indeed in the hearing before us the husband did not articulate how that possibility would be made out.
In Stead v State Government Insurance Commission (1986) 161 CLR 141 the High Court held (at 145):
That general principle [that everyone is entitled to a fair trial] is, however, subject to an important qualification which Bollen J plainly had in mind in identifying the practical question as being: Would further information possibly have made any difference? That qualification is that an appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
Thus, even if we were of the view that the husband was not afforded natural justice we consider a remitter of the issue would be a futility as a new trial would inevitably result in the same order being made.
Federal Magistrate’s failure to determine all of the husband’s applications (Ground 17)
In the application in a case filed on 9 February 2012 the husband sought a plethora of orders including orders for obtaining a valuation of a property owned by the wife’s late mother; the production of medical records relating to the wife’s grandmother; an order that the wife pay his legal costs in the proceedings on a “dollar for dollar” basis; the transfer of the matter to “the Southport court”; and the return to him of some computer equipment.
During the hearing of the application on 16 April 2012 and after hearing submissions from the parties, the Federal Magistrate made directions that the wife provide a letter to the husband disclosing information about her inheritance, her legal costs and disposition of household items (transcript 16 April 2012, page 22). The Federal Magistrate refused to make an order in relation to the medical records of the wife’s grandmother, to transfer the matter to Southport (transcript 16 April 2012, page 26) and made no order in relation to the computer and other equipment held at the wife’s home that the husband asserted he required.
The Federal Magistrate asked the husband about his claim for a costs order and the husband said: (transcript 16 April 2012, page 26)
MR [REDMOND]: Yes. What I thought an alternative to that, your Honour, both parties are struggling with the legal costs in relation to this matter. It is proceeding longer than initially thought. In the respondent’s own affidavit she has said that she is going to need to borrow more moneys from her family to keep the matter going. An alternative suggestion to that, your Honour, would be that the court orders a partial property settlement similar to what it did back in August.
In opposing the husband’s claim for such a costs order, the wife argued that he had already received a distribution of property of $52,000 and disputed the husband’s claim that he had expended most of that on legal costs, arguing that he had not been represented and thus had no legal expenses to meet.
The Federal Magistrate said that he: (transcript 16 April 2012, page 26)
… would like to see an affidavit from [Mr Redmond] within 28 days, setting out precisely what has happened with the $52,000 paid as partial property settlement, and I won’t be making any other order for partial property settlement… unless and until I have seen that affidavit and considered the matter further.
The attention of the court then turned to the husband’s assertion that the solicitors had failed to comply with the subpoena.
The husband’s written argument complains that the Federal Magistrate failed to consider his costs application. We reject that assertion. When it was raised, the husband himself proposed that in the alternative there be a partial property order. The Federal Magistrate plainly said that he would not consider that until the husband had established how he had disposed of the earlier funds. The husband did not then remake his application that the wife pay his costs.
We are of the view that there was no further application in relation to costs or any other matter to be considered by the Federal Magistrate.
Order restraining the husband from bringing further applications in the proceedings (Grounds 14 and 15)
As we have already explained, on 10 July 2012 the Federal Magistrate ordered:
4. That in the event the Applicant wants to file any further application in these property and/or parenting proceedings then he shall take the following steps:-
a. first, the Applicant must make the request to file any further application by forwarding a sworn Affidavit to the Court;
b. the Affidavit shall set out the nature of the intended application; the orders to be sought; the reasons such an application is necessary and a brief summary of the evidence to be relied upon;
c. the Affidavit shall not exceed ten (10) A4 pages in length (including annexures);
d. furthermore, the Applicant must forward – with a copy of the said Affidavit – a copy of these Reasons for Judgment so that the Federal Magistrate (or other judicial officer) determining the matter in Chambers has the benefit of having these Reasons for Judgment immediately brought to his or her attention; and
e. at the same time the Applicant shall also forward a copy of the said Affidavit to the Respondent and to the Independent Children's Lawyer.
The reasons for these orders appear to be as follows:
37. On 16 April 2012, Mr [D] (appearing on behalf of [Firm Y]) made the submission (in essence) that the conduct of the Applicant in continually seeking more and more information and documents etc amounted to vexatious or oppressive conduct. That is the essence of what Mr [D] was submitting. ... Furthermore, in the submissions forwarded to the Court by [Firm Y] dated 8 June 2012 it was specifically submitted at paragraph 14 that the Applicant’s application for contempt of Court was “vexatious, frivolous, an abuse of process and serves no utility whatsoever in this litigation”. A copy of the [Firm Y] letter dated
8 June 2012 was also forwarded to the Applicant. Despite being well aware that this matter was to be determined in Chambers, the Applicant (a solicitor) has forwarded no submission in reply to that submission made by [Firm Y].38. I consider that the Applicant has had an opportunity to be heard in relation to the claim that the manner in which he is conducting this litigation is vexatious.
39. I have come to the conclusion that the Applicant must be prevented from filing any further applications in this Court in respect of the property and/or parenting issues without first obtaining the leave in Chambers of a Federal Magistrate.
40. I note the applicable rules of the Federal Magistrates Court Rules 2001. In r.1.03(4) it is a requirement that:-
“1.03
…
(4). To assist the Court, the parties must:
· avoid undue delay, expense and technicality;
· consider options for primary dispute resolution as early as possible.”
41. In my view the Applicant husband is not complying with that rule and indeed is in breach of that rule.
42. I also note r.1.03(1) which states that the object of these rules is to “assist the just, efficient and economical resolution of proceedings”. If the Applicant is allowed to continually file interlocutory Applications this will defeat the whole purpose of the rules. It is a matter for the Court as to how the actual litigation is conducted. In this Court it is well known that matters are closely case managed. By imposing this restriction upon the Applicant I consider that the Court in this instance in acting to ensure the “just, efficient and economical resolution of proceedings”.
43. In any event each Court has an inherent power and responsibility to regulate the conduct of litigation before it.
(original emphasis)
The husband submits that the Federal Magistrate erred in determining that the husband’s application for contempt against the solicitor was “misconceived, frivolous and vexatious” and that the Federal Magistrate failed to afford him procedural fairness in not allowing him the opportunity to respond to the solicitors’ letter of 8 June 2012.
There is no doubt that the husband received a copy of this letter from the solicitors.
The solicitors’ letter to the husband delivered to the Court in response to the order of 10 July 2012, in dealing with the adequacy of their response to the subpoena states, relevantly to this issue:
The documents that you allege in your letter of 15 May 2012 that “should have been disclosed” by [Firm Y] are not in any way relevant to the issues for determination by the Court and would appear to be no more than a “fishing expedition” and an abuse of process in circumstances where you now seek to enlarge the scope of your Subpoena. We suggest that your Contempt of Court Application is vexatious and frivolous and serves no utility whatsoever.
We first observe that the solicitors did not assert that the husband’s conduct was frivolous, vexatious and an abuse of process, as the Federal Magistrate’s reasons seem to assert. The solicitors’ complaint related to the bringing of a contempt application based on an alleged non compliance with the subpoena. For our part, we entirely agree with the solicitors’ categorisation of the pursuit that the solicitors to be dealt with for contempt. It further appears clear to us that the husband has been very ready to have the court deal with the other parties for contempt in circumstances that could easily be described as frivolous.
That having been said, we are of the view that this ground of appeal must succeed for two reasons.
First, although the husband did receive the solicitors’ letter of 8 June 2012 he could not have understood it to be (nor, we suggest, did the solicitors intend it to be) an application either in substance or terms that an order be made preventing him from filing any further applications without leave. We reject the Federal Magistrate’s reasoning that merely by receiving the letter the husband would have appreciated that and by its receipt had been given an opportunity to be heard on the issue. The Federal Magistrate failed to afford the husband procedural fairness in this regard.
Secondly, the order made by the Federal Magistrate does not refer to any section of the Family Law Act 1975 (Cth) (“the Family Law Act”) or the Federal Magistrates Act 1999 (Cth) (“the Federal Magistrates Act”). However, Rule 13.11 of the Federal Magistrates Court Rules does permit of the making of orders of the nature of those made by the Federal Magistrate.
13.11 Vexatious Litigants
(1)If the Court is satisfied that a person has instituted a vexatious proceeding and the Court is satisfied that the person has habitually, persistently and without reasonable grounds instituted other vexatious proceedings in the Court or any other Australian court (whether against the same person or against different persons), the Court may order:
(a) that any proceeding instituted by the person may not be continued without leave of the Court; and
(b) that the person may not institute a proceeding without leave of the Court.
The order may be made on the application of a person or on the Court’s own motion (subsection (2)).
As the Federal Magistrate did not have recourse to or make mention of that rule we could not conclude whether he was satisfied of the matters to which the rule speaks as being necessary before making the orders there provided.
We would add that the Federal Magistrate also made no reference to s 118 of the Family Law Act which provides as follows:
s118. The court may, at any stage of proceedings under this Act, if it is satisfied that the proceedings are frivolous or vexatious:
(a) dismiss the proceedings; and
(b) make such order as to costs as the court considers just.
To rely on that section, it is necessary to find that “the proceedings are frivolous or vexatious”. That was not a finding made by the Federal Magistrate.
Counsel for the respondent conceded that the Federal Magistrate had no inherent power to make such an order (transcript appeal hearing 2 May 2013 page 25 line 7-10) and as importantly that the husband did not have an opportunity to respond to the solicitors’ letter or otherwise address the issue. Counsel further agreed that the comment in the solicitors’ letter was not an application for the orders ultimately made.
Counsel submitted and as we have indicated, we are in substantial agreement, that the husband’s conduct in the litigation was properly a matter of concern to the Federal Magistrate. It is not clear to us what power the Federal Magistrate was exercising and it is apparent that the husband had no notice that such an order might be made. The appeal should be allowed in part, only in relation to order 3 made by the Federal Magistrate on 10 July 2012. As we have indicated, none of the other grounds challenging the Federal Magistrate’s reasons has been made out. The appeal against order 1 and order 2 made on 10 July 2012 is dismissed.
Appeal NA 97 of 2012
On 13 November 2012 the husband filed an application seeking orders that the Federal Magistrate stay the operation of the orders made on 10 July 2012 pending determination of the appeal against those orders. The husband also sought that the Federal Magistrate disqualify himself from further hearing the matter, and that the wife pay the husband’s costs of the application on an indemnity basis.
The applications were heard and dismissed on 22 November 2012. The Federal Magistrate ordered the husband to pay the costs of the wife and the solicitors. On 28 November 2012 the husband filed this appeal against those orders.
The grounds of appeal are as follows:
1.The Magistrate erred in that he did not disqualify himself from the proceedings for exercising apprehended bias in his decision of 10 July 2012 and from comments made by the Magistrate on 16 April 2012.
2.The Magistrate erred in that he did not grant a stay of the orders dated 10 July 2012.
The basis on which the husband sought that the Federal Magistrate disqualify himself from further hearing the matter arose from the proceedings conducted on 16 April 2012. As will be recalled on 16 April the Federal Magistrate ordered that within 28 days the husband provide the solicitor with a letter identifying the documents which he alleged had not been disclosed.
The husband relied on three matters:
a)The manner in which the Federal Magistrate received the costs submissions and argued that in failing to ensure that the parties had exchanged submissions the Federal Magistrate should have disqualified himself, recognising that the circumstances gave rise to an apprehension of bias;
b)Comments made by the Federal Magistrate in relation to the subpoena argument when the Federal Magistrate raised with the husband the difficulty in proving that documents had not been produced when the solicitor had sworn that the subpoena had been complied with.
c)Comments made by the Federal Magistrate on the issue of costs in the hearing of 16 April 2012.
We observe that we have already considered and determined the challenges raised in the first two matters in dealing with appeal NA 62 of 2012. We propose only to deal with the third of these matters.
As mentioned earlier the Federal Magistrate was not aware that the parties had failed to exchange submissions [10].
The Federal Magistrate’s reasons
The Federal Magistrate described the submissions on these points as “grounds”.
In relation to the impugned remarks relating to the issue of costs, the Federal Magistrate said:
23. Looking at the question of the other aspect to ground 2 – on page number 36 of the transcript. I have already referred to the words complained about. The granting of costs is always at the discretion of the Court. But what the Court made clear (and adequately so in my view) on page 36 of the transcript is that the Court would not be making any costs orders in relation to that particular application. The court made it clear it would consider making a costs order in relation to the other application which was on foot – namely the contempt application. The usual order in Family Law proceedings is that each party bears its own costs (s 117(1)). That clearly is what a fair-minded lay observer would have read into line 36 on page 36 of the transcript of 16 April 2012. The first six words in the sentence that begins on line 36 state:-
“I am not making any costs order, you can bear your own costs”
24.What I did not say there was that – the other side had to bear their own costs as well. It seems that I was directing the comment to Applicant, “You can bear your own costs”. But, quite clearly, the other side to bear their own costs as well…
(original emphasis)
The Federal Magistrate continued:
27.…The complaint is that it evidences – the approach taken by the Court evidences bias on the part of the Court by the Court saying, for instance, “You don’t have a lawyer, what costs can I give you?” But, on the other hand saying in relation to the contempt application, “I will hear a costs application in that regard.” I have already explained the difference between the two applications. In one it was a run of the mill application that was in relation to disclosure and other similar matters in the family law proceedings. On the other hand there was a contempt application on foot alleging that a solicitor (Mr [D] and/or other members of his firm) were in contempt of Court for failing to comply with an order of the Court.
28. As I said earlier I do not think that a fair minded lay observer would apprehend that I failed to bring an impartial mind to the resolution of that issue.
(original emphasis)
The Federal Magistrate then turned to the question of the application for a stay of the orders made on 10 July 2012. After setting out the matters relevant to that issue at paragraph 30, his Honour concluded that to refuse the stay would not frustrate the appeal [32], that no hardship would be suffered by the husband if the stay was not granted [33] and he was not persuaded there was merit in the appeal [34].
In the written argument, the husband addressed the bases of his application that the Federal Magistrate should have disqualified himself.
Mr Redmond said:
27. In relation to the Magistrate’s words on costs, at page 36, line 36 of the transcript, the Magistrate erred, in that any fair minded lay observer would not know the difference in the Magistrate’s reasons for costs not to be considered for one matter or another. This is where the Magistrate clearly erred in his assessment on costs. The Magistrate did not provide any reason why costs were not payable to the appellant, which would have to mean that any lay observer would think that the Magistrate is biased in this regard. Without proper reasons given by a court, what is a lay observer supposed to think? A lay observer would think the Magistrate is biased. Further a lay observer would not know to ask for further reasons for a decision of a Magistrate. If they were not given, they would think the adverse inference that the Magistrate is biased.
The law concerning disqualification on account of apprehended bias is well settled. In Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, to which his Honour referred, the plurality of the High Court (Gleeson CJ, McHugh, Gummow and Hayne JJ) held at 344-349:
6. Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.
(footnotes omitted)
In the earlier decision of Johnson v Johnson (2000) 201 CLR 488 to which his Honour referred, the plurality (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) said at 492–493:
11. ... It has been established by a series of decisions of this Court that the test to be applied in Australia in determining whether a judge is disqualified by reason of the appearance of bias (which, in the present case, was said to take the form of prejudgment) is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide.
…
13. Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice. The rules and conventions governing such practice are not frozen in time. They develop to take account of the exigencies of modern litigation. At the trial level, modern judges, responding to a need for more active case management, intervene in the conduct of cases to an extent that may surprise a person who came to court expecting a judge to remain, until the moment of pronouncement of judgment, as inscrutable as the Sphinx. In Vakauta v Kelly Brennan, Deane and Gaudron JJ, referring both to trial and appellate proceedings, spoke of “the dialogue between Bench and Bar which is so helpful in the identification of real issues and real problems in a particular case”. Judges, at trial or appellate level, who, in exchanges with counsel, express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking about the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.
(footnotes omitted)
Turning then to the words said to constitute bias in the Federal Magistrate, the question posed by the Federal Magistrate (what costs properly could be paid to the husband when he had not been legally represented) was, it seems to us, entirely appropriate and innocuous. The Federal Magistrate’s determination that no apprehension of bias would arise from that exchange is entirely correct.
Failure to grant a stay
The husband submits that the Federal Magistrate erred by failing to take into account the hardship to him in not being able to conduct his case. It is also said that the Federal Magistrate erred by failing to properly assess the merits of the appeal. The husband’s written submission further asserted:
28. …The appellant already advised the court that the court registry has suspended his access to file documents before the court, as they misinterpreted the Magistrate’s order and refused to correct them. There was clear detriment before the court…
In the course of seeking the stay, the husband said to the Federal Magistrate: (transcript 22 November 2012, page 48)
MR [REDMOND]: Another thing too, your Honour, is that you made a determination that I couldn’t file any further applications in this court without leave of yourself.
…
Yes, Now, that’s very restrictive, your Honour, in that - in that, you know, if discretion is to be asked - okay - I cant file any documents - I - not I – can’t file any documents on - online or anything like that. I live in a regional area …. Makes it very difficult to file affidavits…
Further he said: (transcript 22 November 2012, page 51):
MR [REDMOND]: … But there’s restrictive ways of the - because you have labelled me as a frivolous and vexatious litigant, your Honour, that has put restrictions in the way I can handle this matter and make the applications I need to ---
The Federal Magistrate said, in response to the husband’s complaints that his order had had the effect that the Registry refused to accept affidavits rather than applications: (transcript 22 November 2012, page 49)
HIS HONOUR: Well, I think the order speaks for itself. But you keep going and we will see whether something can be done about that.
However in response to the husband’s submissions that he was unable to file documents, the solicitor appearing for the wife observed (transcript 22 November 2012, page 54) that the husband filed an affidavit through the Court’s portal on 6 November 2012. The husband told the Federal Magistrate that he had used the name of “Dooleys Solicitors” to file the document. We note that Mr Dooley is the Independent Children's Lawyer in the matter.
In relation to the stay, the Federal Magistrate set out the well accepted matters to which regard may be had in determining whether to grant a stay. His Honour found that to refuse a stay would not render the appeal nugatory at [32] and then said at paragraph [33], “I can’t at the moment see that there is any particular hardship that will be suffered in this case by the husband by refusing the stay”.
In the context of the husband’s submissions, together with the offer by the Federal Magistrate to “see whether something could be done” about the husband’s capacity to file documents other than applications, and in the light of wife’s submission that the husband had, using another solicitor’s identification, managed to file documents, this finding about hardship was entirely open to him and we find no error in that conclusion.
The Federal Magistrate considered the prospects of success of the husband’s appeal as he was required and concluded [34][: “…it seems to me the question is whether or not there is merit in the appeal, and frankly, I've concluded I do not think there is merit in the appeal”.
The assessment of merit was one for the Federal Magistrate in the context of all that had gone before and the submissions on the husband’s application. We find no error in the Federal Magistrate’s approach to the question of whether or not to order a stay.
The husband further appeals against the costs orders made against him by the Federal Magistrate. The husband’s applications were entirely unsuccessful and the decision to award costs against him in favour of the wife was one well open to the Federal Magistrate.
Application to Adduce Further Evidence
On 17 April 2013 the husband filed an application seeking leave to adduce further evidence in both appeal NA 62 and NA 97 of 2012. The application is expressed to be in relation to both appeals.
The proposed evidence comprises the husband’s complaint to the Queensland Legal Services Commissioner about the conduct of the solicitors in not providing him with a copy of their costs submissions and the Commissioner’s response to his complaint, which indicated that no further action would be taken.
The husband said that the purpose of the proposed further evidence was to encourage the Full Court to recommend that some sort of penalty should be applied to Mr D, the solicitor, for not sending a copy of his costs submissions to the husband, or that the Full Court should remit that issue.
The circumstances in which this Court may receive further evidence on appeal is relatively circumscribed and in accordance with the decision in CDJ v VAJ (No 2) (1998) 197 CLR 172. This application does not fall within any of the accepted categories. There is no legitimate purpose for the tender of further evidence and we reject the application.
Leave to appeal
In appeals NA 62 and NA 97 of 2012 the husband requires leave to appeal because the orders are interlocutory.
The principles relevant to applications for leave to appeal against interlocutory orders are well known. An applicant seeking leave to appeal must demonstrate that there has been an error of principle and/or a substantial injustice to one of the parties (Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 177).
Save for the order preventing the husband from filing further applications in the proceedings, the husband has not established either an error of principle or a substantial injustice.
In relation to appeal NA 97 and appeal NA 62 save for the restraint on the husband’s capacity to file further proceedings, we would not grant leave.
We do grant leave in respect of appeal NA 62 of 2012 against order 3 made on 10 July 2012.
Conclusion
The appeal NA 97 of 2012 will therefore be dismissed. Appeal NA 62 of 2012 will be allowed only in relation to the order of the Federal Magistrate that purported to restrain the husband from filing and further applications in the proceedings with the wife. We will set aside order 3 made on 10 July 2012.
Counsel for the wife submitted that, while conceding that the order of the Federal Magistrate restraining the husband from filing further applications was not properly made, the balance of the appeal should fail. It was submitted that in that event, the costs order made by the Federal Magistrate against the husband on 10 July 2012 should remain.
We agree. The husband’s appeal NA 62 of 2012 has substantially failed. In that event, even though we will allow the appeal to a limited degree, the costs orders made should be maintained.
We will thus set aside order 3 made on 10 July 2012.
Costs
As is our custom we sought submissions on costs from the parties at the conclusion of the appeal. Counsel for the wife submitted that it would be a matter more properly reserved until after the determination of the appeal because the submissions will refer to offers made. We will thus provide the opportunity for the parties to make submissions in writing on the question of costs of the appeal.
Appeals NA 47 and NA 89 of 2012 – Child Support
On 25 October 2011 the husband applied to the Federal Magistrates Court for the following orders:
1. That pursuant to section 111C of the Child Support (Registration and Collection) Act 1988 the collection of child support payable (current liability and arrears) by [Mr Redmond] to [Ms Redmond] for their daughter be stayed pending a final order in these proceedings.
2. That the Applicant be at liberty to file amended orders pursuant to section 116(b) of the Child Support (Assessment) Act1989 for a departure from the administrative assessment of the Child Support Agency.
The application was heard by Federal Magistrate Coates on 3 November 2011 and determined on 28 May 2012. The Federal Magistrate ordered that the application be dismissed. The husband’s appeal from this order is NA 47 of 2012.
The Federal Magistrate heard a costs application by the wife following the husband’s failed application. The submissions were in writing, there was no hearing in court. On 18 October 2012 his Honour ordered that the husband pay the wife’s costs in the sum of $3,664.23. He stayed payment of the order pending the determination of the husband’s “appeal in the substantive matter”.
We will deal with the appeals against both of these orders together.
Refusal to stay and to amend orders
The husband’s basis for the stay and liberty to file is found in his affidavit in support of the application. He contended that the assessment of his Child Support liability was inaccurate and he had appealed that assessment to the Social Security Appeals Tribunal (“the SSAT”). The hearing of that appeal was listed for 12 December 2011. According to the husband, on that date, the sale of the parties’ former matrimonial home was to settle and, in accordance with an earlier order, he and the wife were to receive an interim property distribution. The husband sought the stay because he was concerned that the Child Support Agency would seek recovery of the arrears of Child Support from that interim distribution.
Section 111C of the Child Support (Registration and Collection) Act1988 (Cth) (“the Registration and Collection Act) provides:
Stay orders
(1) This section applies if a proceeding has been instituted:
(a)in a court having jurisdiction under this Act; or
(b)before the Registrar under Part VII; or
(c) before the SSAT under Part VIIA; or
(d) under Part 6A or 7 of the Assessment Act.
(2) A party to the proceeding may, subject to the Family Law Act 1975 :
(a)in the case of a proceeding instituted in a court--apply to that court for an order under this section; or
(b)otherwise--apply to a court having jurisdiction under this Act for an order under this section.
(3)Pending the hearing and final determination of the proceeding, the court may make such orders as the court considers appropriate staying or otherwise affecting the operation or implementation of the Assessment Act and this Act if the court considers that it is desirable to do so, taking into account the interests of the persons who may be affected by the outcome of the proceeding.
Reasons of the Federal Magistrate
After setting out the section, the Federal Magistrate observed:
4. As stated, there must be a proceeding of the type mentioned in s.111C(1) before the power to make the stay can be invoked. However, as stated in s.111C(3), the stay itself must be related to a child support claim.
By reference to the Federal Magistrate’s court file, he concluded that there were no claims in that court regarding child support at [7].
His Honour then turned to consider the husband’s application to file amended orders and, after referring to r 7 of the Federal Magistrates Court Rules 2001 (Cth) which concerns amendments said:
10. But the rule is predicated upon and anticipates an actual positive step being taken by the amended application or response, not one where such may be taken at some unknown time in the future if it suits the litigant, depending on other circumstances. The same reasoning applies to a stay application, which is an order capable of being made but only if there is a proceeding on foot as mentioned in s.111C, not on the basis that the litigant may bring such a matter before the Court, as his use of the word “liberty” in the application proposes.
The Federal Magistrate concluded that the requirement of s 111C of the Registration and Collection Act was that there had to be a “causal connection” between the stay order sought and a proceeding to which the stay made under s 111C can be applied, and thus the stay application was incompetent [15]. He concluded that before the husband could “be eligible for a stay”, he was required to file for a departure order at [19].
The Federal Magistrate further found that the husband’s use of the word “liberty” in his second order sought was;
…indicating he seeks an order of the court to file if it suits the [sic] him, rather than leave being given whereby an application would be filed. His application amounts to the seeking of a mere opportunity to file an amended application regarding child support, one which he may or may not file depending on how other child support decisions affect him.
The appeal
Although the Notice of Appeal contains 11 grounds, only one issue was agitated in the submissions, that being the Federal Magistrate’s interpretation of the operation of s 111C of the Registration and Collection Act.
On 12 July 2012 the Child Support Registrar applied to intervene in appeal NA 47 of 2012. Written submissions were received and counsel appeared at the hearing of the appeal.
Counsel for the Child Support Registrar appeared on the appeal as the second respondent. We were informed that the Registrar supported the husband’s appeal insofar as the interpretation and application of s 111C was concerned, conceding that the Federal Magistrate was in error.
The wife’s counsel sensibly conceded this point, although argued that, nonetheless, the grant of a stay being discretionary, the Federal Magistrate had made no error in refusing to grant a stay.
By the time the appeal came on for hearing, the husband had filed an amended application in relation to Child Support.
Failure to grant the stay
In her comprehensive submissions, Dr Brasch, for the Child Support Registrar submitted:
2.2 On any proper construction of this section, it is submitted that it does not limit or narrow an application for a stay to the consideration of just those proceedings before the court where the application for the stay is made. Indeed, such a narrow approach would render nugatory the references in section 111C to proceedings before the Registrar or the SSAT and to “otherwise” applying to a court.
As was rightly conceded during argument on the appeal, this construction is irresistible and, plainly the Federal Magistrate was wrong to find otherwise. The SSAT proceedings then on foot clearly provided the Federal Magistrate with the power by which to make the stay.
We then turn to the wife’s argument, which is that nevertheless, the discretionary nature of the grant of a stay was such that the Federal Magistrate was correct not to order a stay.
The Federal Magistrate made no reference at all in his reasons to any matter other than the power to order the stay. It seems clear that he did not turn his mind to them having determined that s 111C did not apply. The appeal must succeed for these reasons.
Since the husband had filed amended orders as foreshadowed by his application also dismissed by the Federal Magistrate, there is no reason to engage with that part of the appeal.
Costs appeal
As we have already indicated, on 28 May 2012 when the applications were dismissed the Federal Magistrate entertained an application for costs made by the wife. The order was made and reasons for his decision delivered on 18 October 2012. The basis of the costs order against the husband was the dismissal of his applications. That finding having been successfully impugned by the husband, it was conceded by counsel for the wife that the appeal against the costs order must also succeed.
Both appeals NA 47 and NA 89 of 2012 will succeed. As to the first appeal, that against the refusal to stay, during the course of the appeal hearing it was agreed that the arrears of child support owed by the husband had been paid and no arrears owed. That being the case, there is no issue to be remitted or
re-determined. We will set aside the order for costs made by the Federal Magistrate on 18 October 2012.
Leave to appeal
The husband required leave to bring both appeals NA 47 and 89 of 2012. Given the concessions of error and our finding that the Federal Magistrate was in error in his interpretation of s 111C of the Registration and Collection Act, leave to appeal is appropriate in each case.
Costs of the appeal
This is a matter in which we would not make an order that either party be liable for the costs of the other and we would make no order for costs. Counsel for the wife and the husband applied for a costs certificate for the appeal. In view of the reasons allowing the appeal, it is an appropriate order to make. The Child Support Registrar did not ask for their costs.
I certify that the preceding two hundred and twelve (212) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Ainslie-Wallace and Kent JJ) delivered on 9 October 2013.
Associate:
Date: 9 October 2013
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