Spencer and Spencer (No. 4) - [2020] FamCAFC 254

FAMILY COURT OF AUSTRALIA

SPENCER & SPENCER (NO. 4)

[2020] FamCAFC 254

FAMILY LAW – APPEAL – APPLICATION FOR STAY – Where the Applicant’s appeal to the Full Court of the Family Court of Australia was dismissed – Where the Applicant was ordered to pay the Respondent’s costs of the unsuccessful appeal in a fixed amount of $9,22.94 – Where the Applicant has filed an application to extend time to apply for special leave to appeal to the High Court of Australia – Where the Applicant seeks a stay of the costs order pending her application in the High Court of Australia – Where the Respondent chose not to participate in this application – Application allowed.

Family Law Rules 2004 (Cth) r 22.37(b)(ii)

Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (No 1) 1986 161 CLR 681; [1986] HCA 84
Re Marks and Federated Ironworkers’ Association; Ex parte Australian Building Construction Employees and Builders’ Labourers’ Federation (1981) 34 ALR 208
Spencer & Spencer (No 3) [2020] FamCAFC 145

APPLICANT:

Ms Spencer

RESPONDENT:

Mr Spencer

FILE NUMBER:

PTW

7180

2010

APPEAL NUMBER:

WEA

2018

DATE DELIVERED:

9 October 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Perth

JUDGMENT OF:

Kent J

HEARING DATE:

In Chambers; Applicant’s submissions received 14 August 2020

LOWER COURT JURISDICTION:

Family Court of Western Australia

LOWER COURT JUDGMENT DATE:

13 December 2018

LOWER COURT MNC:

[2018] FCWA 249

REPRESENTATION

THE APPLICANT:

Self-represented

SOLICITOR FOR THE RESPONDENT:

Biddulph & Turley

Orders

Pending the determination by the High Court of Australia of:
(a)       the Applicant’s Application for an Extension of Time to Apply for      Special Leave to Appeal; and
(b)       the Applicant’s Application for Special Leave to Appeal to that Court           from the orders made by the Full Court of this Court on 12 June 2020; and
(c)       the appeal to the High Court of Australia, if special leave is granted; and
(d)       the application for prerogative relief sought by the Applicant from the          High Court of Australia in respect of the orders made by the Full Court of            this Court on 12 June 2020;
enforcement of the order for costs made by the Full Court of this Court on 12 June 2020 be stayed.
The balance of the orders sought in the Application in an Appeal filed on 15 July 2020 be dismissed.

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 Spencer & Spencer (No. 4) 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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
PERTH

Appeal Number: WEA 45 of 2018
File Number: PTW 7180 of 2010

Ms Spencer

Applicant

And

Mr Spencer

Respondent

REASONS FOR JUDGMENT

On 12 June 2020, the Full Court of this Court (Aldridge, Kent & Duncanson JJ) made orders, and delivered reasons for those orders, dismissing the Applicant’s application for leave to appeal from the orders made in the Family Court of Western Australia on 13 December 2018; and dismissed each of the Applicant’s Applications in that Appeal filed on 24 January 2019, 27 August 2019 and 10 June 2020 respectively.[1]
[1]Spencer & Spencer (No 3) [2020] FamCAFC 145.
The orders made on 12 June 2020 included an order (Order (5)) that the Applicant pay the Respondent’s costs of and incidental to the application for leave to appeal in the fixed sum of $9,022.94 (“the costs order”).
The Applicant has made an application to the High Court of Australia to extend time to apply to the High Court for special leave to appeal from the orders made by the Full Court of this Court on 12 June 2020. The Applicant has also instituted proceedings in the High Court of Australia seeking prerogative relief in respect of the judgment of the Full Court of this Court made on 12 June 2020.
Against that background, the Applicant filed an Application in an Appeal on 15 July 2020 seeking, inter alia, the grant of a stay of enforcement of the costs order pending the resolution of the proceedings in the High Court of Australia referred to. The Applicant also seeks other orders, apparently as an alternative if a stay is not granted.
Upon reference of that application by the Regional Appeal Registrar pursuant to r 22.37(b)(ii),[2] I made orders on 24 July 2020 as to the determination of the application, including procedural orders for the filing of any written submissions either party sought to rely upon.
[2] Of the Family Law Rules 2004 (Cth).
In the event, the Respondent has advised the Appeals Registrar to the effect that he does not wish to be heard in respect of this application and has thus not filed any written submissions. Given the relatively modest amount of costs involved, the subject of the costs order, as compared to the overall amount of costs the Respondent has expended in various proceedings to date, as referred to in the reasons for judgment of the Full Court delivered on 12 June 2020, the position adopted by the Respondent is readily understandable. Moreover, the Applicant has launched other proceedings in the High Court of Australia in respect of other appeal determinations of the Full Court of this Court which also concern the Respondent.
It is well recognised that the jurisdiction to grant a stay pending the outcome of an Application for Special Leave to Appeal to the High Court of Australia is extraordinary.[3] As already noted in the present case the Applicant also requires an extension of time in which to file her Application for Special Leave to Appeal. It can likewise be seen that the jurisdiction to stay proceedings when an application has been made for prerogative relief is “seldom invoked and rarely exercised”.[4]
[3] See, for example, Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681.
[4] See, for example, Re Marks and Federated Ironworkers’ Association; Ex parte Australian Building Construction Employees and Builders’ Labourers’ Federation (1981) 34 ALR 208 per Mason J at 211.
In my judgment having regard to the relatively modest amount of costs involved which is the subject of the costs order, and more particularly the position adopted by the Respondent not to actively oppose the application, this is an important consideration at least as regards the discretionary consideration of the question of balance of convenience. The Applicant has deposed to her incapacity to meet payment of the costs order.
It does not appear that a stay of enforcement of the costs order is necessary so as to preserve the subject matter of the litigation. Nor would I assess, having reviewed the Applicant’s material filed in the High Court of Australia which the Applicant sought to rely upon, that the Applicant has any substantial prospect of success with respect to either her Application for Special Leave to Appeal or in respect of the prerogative relief she seeks.
In my judgment, it is only by predominating the balance of convenience as a discretionary consideration that a stay upon enforcement of the costs order can legitimately be contemplated. If, contrary to my assessment as to prospects, the Applicant succeeds in an Application for Special Leave to Appeal and in a subsequent appeal to the High Court, or succeeds in obtaining prerogative relief, it is reasonable to assume that the costs order may be set aside.
Not without considerable hesitation I will, in these circumstances, grant a stay on enforcement on the costs order pending the High Court of Australia’s resolution of the proceedings in that Court.
Given the grant of this stay it is probably unnecessary to deal with the Applicant’s alternative orders sought but for completeness I will deal with them.
I have had regard to the documents that the Applicant has filed in the High Court of Australia in dealing with this application so it is unnecessary for a formal order for leave to be made for the Applicant to rely upon those documents.
The further order sought that a “financial payment plan be negotiated if required”, presumably if the outcome of the High Court of Australia’s determinations is unfavourable to the Applicant, is misconceived. It will be a matter for a judicial officer exercising the relevant discretion in any necessary enforcement proceedings whether such a mechanism ought be contemplated. It is not legitimately raised on this application.
Finally, the order sought that the subject costs “be taxed and/or disclosed” is likewise entirely misconceived. The Full Court has determined to fix the amount of costs in the sum ordered for the reasons delivered on 12 June 2020. It is not open to the Applicant to purport to revisit that determination on this application.
For these reasons, apart from the grant of a stay of enforcement, the balance of the application will be dismissed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 9 October 2020.

Associate:

Date: 9 October 2020