SCVG & KLD - [2016] FamCA 801

FAMILY COURT OF AUSTRALIA

SCVG & KLD

[2016] FamCA 801

FAMILY LAW – STAY APPLICATION where there is an existing stay order but which is limited to enforcement of any costs payment – Power to vary that order.

FAMILY LAW – STAY APPLICATION – pending determination by Full Court and potentially a special leave application to the High Court of Australia – Extent of power in rule 22.11 – Whether there is power to extend the stay concept and provisions to potential changes in legislation and the outcome of other civil proceedings in the High Court including against 2 judges of this Court for having exceeded power in making orders. Discussion as to rule 22.11 – Power limited to practice and procedure pending Full Court determination – No merit in argument – Application dismissed.

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

ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199
Abella v Anderson [1987] 2 QdR 1
Commonwealth v Bank of New South Wales (1949) 79 CLR 947
Gallo v Dawson (no 2) [1992] HCA 44; (1992) 109 ALR 319
Jackson v Stirling [1987] HCA 23; (1987) 162 CLR 612
Meggitt Overseas Ltd & Ors v Grdovic (1998) 43 NSWLR 527
Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457
Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246
Willow Wren Canal Carrying Co Ltd v British Transport Commission [1956] 1 All ER 567; [1956] 1 WLR 213

APPLICANT:

Mr SCVG

RESPONDENT:

Ms KLD

FILE NUMBER:

SYC

4380

2008

DATE DELIVERED:

21 September 2016

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

19 September 2016

REPRESENTATION

THE APPLICANT:	In Person
SOLICITOR FOR THE RESPONDENT:	Mr Macphillamy, Macphillamy Lawyers

Orders

That the application in a case filed by the applicant on or about 8 September 2016 be dismissed.
That any application for costs arising out of this order be by way of written submission filed and served on the other party by no later than 4 pm on 30 September 2016 and any response thereto be filed and served on the other party by no later than 4 pm on 14 October 2016 and such application (if any) be determined in chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym SCVG & KLD has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: SYC 4380 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SCVG & KLD

Details

AGLC: SCVG & KLD [2016] FamCA 801
Case: [2016] FamCA 801
Decision Date: 21 September 2016

CaseChat Overview and Summary

The applicant, SCVG, sought a stay of proceedings from Cronin J in the Federal Circuit Court. The application was made in the context of an existing stay order that was limited to the enforcement of a costs payment. SCVG sought to vary this existing order to encompass potential changes in legislation and the outcome of other civil proceedings he had initiated, including actions against two judges of the court for allegedly exceeding their powers.

The court was required to determine the extent of its power under rule 22.11 of the Family Law Rules 2004 (Cth) to vary the existing stay order. Specifically, the court had to consider whether this rule permitted an extension of the stay to cover anticipated legislative changes and the potential outcomes of SCVG's separate civil proceedings in the High Court. The legal issues also involved assessing the merit of SCVG's arguments regarding the power to sue judges and the relevance of section 32 of the Judiciary Act 1903 (Cth) to his application.

Cronin J dismissed the application, finding no merit in SCVG's arguments. The court reasoned that rule 22.11 was limited to practice and procedure pending a Full Court determination and did not grant power to speculate on future legislative changes or the outcomes of other proceedings. Applying established legal principles, the court held that it could only act upon the law as it currently stood and could not grant adjournments or stays based on anticipated amendments to legislation. Furthermore, the court found that SCVG's reliance on the High Court decision in *Gallo v Dawson* was misplaced, as that case did not support his proposition regarding actions against judges for exceeding their powers in the manner he contended.

The application filed by the applicant on or about 8 September 2016 was dismissed. Any application for costs arising from this order was to be made by written submission by 4 pm on 30 September 2016, with any response due by 4 pm on 14 October 2016, and such applications were to be determined in chambers.

Orders

Orders of the court

That the application in a case filed by the applicant on or about 8 September 2016 be dismissed.

That any application for costs arising out of this order be by way of written submission filed and served on the other party by no later than 4 pm on 30 September 2016 and any response thereto be filed and served on the other party by no later than 4 pm on 14 October 2016 and such application (if any) be determined in chambers.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

An analogous situation to that raised by Mr SCVG’s proposition about the changing political landscape can be seen in cases where courts have been asked to adjourn proceedings in anticipation of changes to the law and particularly in relation to proposed legislation. In Meggitt Overseas Ltd & Ors v Grdovic (1998) 43 NSWLR 527 at 532, Mason P, with whom Sheller and Beazley JJA. agreed, said:-These basal principles have been applied in a line of cases denying that it is proper to grant a contested adjournment of legal proceedings for the purpose of enabling one party to take advantage of a proposed amendment of the enacted law. In Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd [1935] HCA 75; (1935) 54 CLR 230 at 253, Starke J said:Courts of law, however, can only act upon the law as it is, and have no right to, and cannot, speculate upon alterations in the law that may be made in the future.” (my emphasis) That approach has also been applied in cases where a Bill was already before the Parliament.(see Willow Wren Canal Carrying Co Ltd v British Transport Commission [1956] 1 All ER 567; [1956] 1 WLR 213 and Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246). In the latter case, the New South Wales Court of Appeal refused an adjournment application based upon the “prospect of a legislative change in the situation”. McHugh JA said (at 258):…. as a general rule, it is not a proper exercise of the discretion to grant an adjournment on the ground that it is believed that the law may or will be changed in the near or remote future. (again, my emphasis) Thus, in respect of the law changes anticipated by Mr SCVG, I consider the authorities are well settled and even if there is a power in rule 22.11, I should not speculate as to what those changes might mean such as to make the order he seeks. In relation to the second basis put by Mr SCVG about his civil action, he relies upon two things. First, there is the power to sue judges for exceeding their powers and secondly, there is s 32 of the Judiciary Act 1903. His argument is that the costs order should be stayed pending the outcome of his civil action because the High Court might set all of the orders aside. In respect of the first claim, Mr SCVG said he relied upon what was said by the High Court in “Gallo v Dawson”. In the initial proceedings in the High Court in Gallo in which the defendant was Dawson J, Wilson J dismissed the application on the basis of what might best be described as judicial immunity. That however was an action against a justice for acting within the scope of his powers whereas (it seems) Mr SCVG is arguing that the two unnamed judges of this Court acted outside the scope of their powers. In Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479, McHugh J heard an application for an extension of time brought by Ms Gallo to appeal against the decision of Wilson J. His Honour was dealing with an extension of time argument so it is hard to see the relevance of the point that Mr SCVG raises. On appeal to the remaining justices in Gallo v Dawson (no 2) [1992] HCA 44; (1992) 109 ALR 319 against the decision of McHugh J, it is hard to see any support for any argument raised by Mr SCVG. To the extent that Gallo raised questions of the High Court dealing with actions against judges acting outside judicial power, its relevance is not apparent.