SCVG & KLD
[2016] FamCA 801
•21 September 2016
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 | of | 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 2008
| MR SCVG |
Applicant
And
| MS KLD |
Respondent
REASONS FOR JUDGMENT
By an application in a case apparently filed on 8 September 2016, Mr SCVG seeks a “stay” of an order made on 20 August 2015 that he contribute towards the costs of Ms KLD. Ms KLD opposes the application albeit without filing anything in response.
The written application
The application is worded as follows:
That the costs orders……is stayed pending delivery of judgement in the appeal of those orders……and the outcome of any subsequent Application for special leave to appeal to the High Court of Australia. (my emphasis)
The oral application
In his oral submissions, Mr SCVG went further than his written application. He now seeks a stay order, pending (in essence):
·Finalisation of legislative changes to the Family Law Act1975 (Cth) (“the Act”); and
·Completion of his civil proceedings in the High Court of Australia against two judges (unnamed before me) for “acting outside their judicial duties”.
The discussion around these matters centred upon the extent of any power to extend the current stay beyond the determination by the Full Court.
Background
The background to these proceedings does not need to be addressed here; it is sufficient to say that the parties have been litigating for over ten years. There have been trials in this Court, the (then) Federal Magistrates Court, the Full Court of this Court, the High Court of Australia (in respect of special leave applications) and in the New South Wales courts.
The costs orders
The discrete orders to which this stay application refers arose out of a substantive parenting dispute. Having handed down my reasons for judgment and made orders, there followed a costs application in which I also made orders. A consequential stay application by Mr SCVG in October 2015 ultimately resulted in the making of the following orders:
1.That the payment by the applicant ([Mr SCVG]) of any costs determined pursuant to paragraphs 1 and 2 of the orders made on 20 August 2015 is stayed pending the final determination by the Full Court of the Family Court of Australia arising out of the Notice of Appeal filed on 15 September 2015.
2.That the applicant and the respondent forthwith complete all other requirements of paragraphs 1 and 2 of the orders made on 20 August 2015.
A number of matters need to be said to put those orders in context:
·The appeal against the August 2015 orders was heard in May 2016 and the judgment of the Full Court is currently reserved;
·The Canberra Registry of the Court had given notice to the parties that, in the absence of agreement as to the costs, there would be a conference to commence the assessment contemplated by order number 2.
The stay power
Mr SCVG submitted that although he was not a lawyer, common sense indicated that there was power for the Court to make any order staying its orders because the rule was silent on its extent. He further submitted that the words of my order pending the final determination by the Full Court of the Family Court of Australia really meant until everything was exhaustively and finally determined and by inference, if necessary, by the High Court.
Thus, Mr SCVG asserted that in addition to making an order that would effectively bind the Full Court, I could extend the stay until the determination of any application he made to the High Court of Australia. He submitted that so extensive is the power that one could even make an order that the appealed order not be enforced, implemented or executed until (for example) a certain football team won a grand final. Although said in a humorous but analogous way, it really addressed the two issues which are apparently foremost in Mr SCVG’s mind and to which I made reference in paragraph [3] above.
Mr SCVG’s submission
Mr SCVG submitted that if there was such a wide power, it was discretionary and I should be minded to take into account the two issues he raised. First, he pointed to the fact that the political party, “One Nation” has as its manifesto, a desire to see changes to the family law system of determination of disputes. He considered that such legislation might be introduced (presumably on his view, in the Senate) and that the political landscape” is changing. His professed view is that “something will happen” because the Prime Minister will have to negotiate changes to his government’s legislative agenda and the family law system might be the area involved.
Secondly, Mr SCVG observed that he has commenced “civil proceedings” in the Original Jurisdiction of the High Court against 2 judges and that Ms KLD had been joined. He submitted that “Gallo v Dawson” was the authority for his proposition that judges can be sued. His writ, he explained, included a reliance upon s 32 Judiciary Act 1903 (Cth) which he interpreted to mean that the High Court can overturn all decisions made by any court in the Commonwealth of Australia using that legislative power.
The rule
Section 123 of Act provides for a rule-making power. That section provides that the rules must be “not inconsistent with” the Act providing for “practice and procedure” to be followed and matters and things incidental to practice and procedure including:
…
(c)providing for and in relation to the time and manner of institution of appeals in and to the Family Court.
That section of the Act empowered the making of rule 22.11 the relevant part of which reads:
(2)If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.
Mr SCVG interprets that sub rule to mean what I have described in paragraphs [8] and [9] above.
The obligations under the existing order
Before dealing with the unusual aspects of the application, I observe that:
·There is effectively a stay in operation pending the determination of the Full Court; and
·The complaint by Mr SCVG is that he would have to prepare for what might not ultimately be necessary if his appeal is successful.
There is little substance in Mr SCVG’s argument that he is inconvenienced by having to attend to the preparation for the costs determination process. That can be done by telephone and he is an experienced litigator. It is also unnecessary that I consider whether I am functus officio because rule 1.12(3) is probably wide enough to allow for a variation of the earlier order.
Discussion
In reality, Mr SCVG is seeking that I go far beyond the existing stay. It is his submission that there is power for me to do so and if so, I should exercise my discretion in his favour. For the reasons that follow, I reject that.
If an appeal against my order was successful in Mr SCVG’s favour, the Full Court could discharge the order and/or exercise its discretion to make some other order. Alternatively, the Full Court could dismiss the appeal in which case, the order I made would then be immediately operative. It is difficult in those circumstances to see how rule 22.11 could be read as widely as Mr SCVG would have it. To so read it would be fettering the Full Court in some way. To make an order that anticipated further appeals or reviews beyond the Full Court would also be usurping the function of the Full Court.
In my view, the rule is, as s 123 anticipated, limited to a matter of practice and procedure and cannot concern itself with the substantive issues arising out of the appeal which are to redress error. The appeal is an approach to the appeal court to set aside or vary the order from the court below and to make an order in the appellant’s favour accordingly if he is successful (including where appropriate for a retrial of the issue) (see Commonwealth v Bank of New South Wales (1949) 79 CLR 947). The approach suggested by Mr SCVG would usurp that superior role.
Even if it could be argued that the power in the rule is as wide as Mr SCVG suggested, I would doubt the power should or could be exercised here for the following reasons.
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.
To the extent that the High Court of Australia determines that there is a justiciable issue against two judges of this Court, any relief could then be sought. Mr SCVG (although not orally) argued that the refusal to grant the relief he sought would render his appeal (to the Full Court of this Court) nugatory (and by extension of the argument, to the proceedings in the High Court) because he would not be able to recover the money against Ms KLD even to the extent that he might have to resort to bankruptcy. That argument has no merit. It is not clear to me what relief he is seeking (if any) against the two judges other than that he is apparently seeking to have all orders set aside. He is, in effect, seeking injunctive relief by a different guise and all of the authorities about protecting judgments before having even obtained them, would militate against that approach (see cases such as ABC v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199, Abella v Anderson [1987] 2 QdR 1 and Jackson v Stirling [1987] HCA 23; (1987) 162 CLR 612).
In relation to Mr SCVG’s argument about the Judiciary Act, s 32 of that Act reads:
The High Court in the exercise of its original jurisdiction in any cause or matter pending before it, whether originated in the High Court or removed into it from another Court, shall have power to grant, and shall grant, either absolutely or on such terms and conditions as are just, all such remedies whatsoever as any of the parties thereto are entitled to in respect of any legal or equitable claim properly brought forward by them respectively in the cause or matter; so that as far as possible all matters in controversy between the parties regarding the cause of action, or arising out of or connected with the cause of action, may be completely and finally determined, and all multiplicity of legal proceedings concerning any of such matters may be avoided.
In Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd [1981] HCA 7; (1981) 148 CLR 457 it was noted by McHugh J that the use of s 32 was as an exercise of constitutional power that was intended to supplement other powers to give remedies appropriate to the exercise of the substantive jurisdiction.
It remains unclear to me what cause of action Mr SCVG has, including against Ms KLD, relying upon the provisions mentioned. How that provision can be used in circumstances where the substantive actions have all been the subject of various appeals including unsuccessful special leave applications, remains a mystery.
Because of the vagueness of both the s 32 point and his proposed action based upon want of jurisdiction, together with my view that the power to grant a stay is limited to the period until the determination by the appeal court, I consider there is no merit in the application by Mr SCVG and it should be dismissed.
Mr SCVG desired that I give both sides an opportunity to argue any costs issue in writing (presumably because he was not ready at the hearing) and as the solicitor for Ms KLD did not object to that course, I will make an order accordingly.
I certify that the preceding Thirty One (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 21 September 2016.
Associate:
Date: 21 September 2016
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