Sresbodan and Sresbodan and Ors
[2014] FamCAFC 104
•15 May 2014
FAMILY COURT OF AUSTRALIA
| SRESBODAN & SRESBODAN AND ORS | [2014] FamCAFC 104 |
| FAMILY LAW – APPEAL – PROPERTY – where the appellant appeals an order dismissing his application for partial property settlement and an order setting aside a subpoena – where the majority of the grounds of appeal are directed to the validity of a sequestration order made some time ago – where the appellant has unsuccessfully sought to challenge the sequestration order in the Federal Court – whether leave to appeal ought be granted – where no error amenable to appellate intervention apparent either from the grounds of appeal, the arguments advanced by the appellant or the Full Court’s consideration of the material – where leave to appeal not granted – where, even if leave were granted, the appeal would be dismissed pursuant to s 96AA of the Family Law Act 1975 (Cth) on the basis that the appeal has “no reasonable prospect of success” – appellant ordered to pay the respondents’ costs. |
| Bruce F McLaren Holdings Pty Ltd & McLaren (2000) FLC 93-030 [Sresbodan] v The Hills Shire Council [2013] FCA 652 Strahan & Strahan (2011) FLC 93-466 Warren v Coombes (1979) 142 CLR 531 |
| Bankruptcy Act 1966 (Cth) |
| APPLICANT: | Mr Sresbodan |
| 1st RESPONDENT: | Ms Sresbodan |
| 2nd AND 3rd RESPONDENTS: | Trustees of the Bankrupt Estate of Mr Sresbodan | ||||
| APPEAL NUMBER: | EA | 80 | of | 2013 | |
| FILE NUMBER: | SYC | 4345 | of | 2006 | |
| DATE DELIVERED: | 15 May 2014 | ||||
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Murphy and Austin JJ |
| HEARING DATE: | 15 May 2014 |
REPRESENTATION
| THE APPLICANT: | In Person |
| SOLICITOR FOR THE 1ST RESPONDENT: | Mr Richardson |
| SOLICITOR FOR THE 2ND AND 3RD RESPONDENTS: | Ms McMahon |
Orders
The Application for Leave to Appeal filed on 3 July 2013 is dismissed.
The applicant husband pay the first, second and third respondents’ costs of the Application for Leave to Appeal on a party-party basis in such sum as may be agreed, and in default of agreement, such sum as is assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sresbodan & Sresbodan and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
APPEAL NUMBER: EA 80 of 2013
FILE NUMBER: SYC 4345 of 2006
| Mr Sresbodan |
Applicant
And
| Ms Sresbodan |
1st Respondent
And
| Trustees of the Bankrupt Estate of Mr Sresbodan |
2nd and 3rd Respondents
Ex Tempore
REASONS FOR JUDGMENT
Murphy J
The husband seeks to appeal interim orders made by Fowler J on 20 June 2013, in which his Honour dismissed an amended application in a case filed by the husband on 1 May 2013 and, set aside a subpoena “…sought by the husband to be issued on the Trustees.” The husband has conceded he needs leave to appeal. The granting of leave is challenged by the trustees in bankruptcy and by the respondent wife. A decision on the application for leave will be postponed so as to permit a consideration of the merits of the appeal if leave is granted.
It is necessary to sketch a brief background to these proceedings. That brief background is necessary to give context to the challenges made by the husband in the instant appeal. In November 2006, the wife instituted proceedings for property settlement orders. On 12 May 2009, in entirely separate proceedings involving the husband and a party unrelated to the matrimonial cause, a sequestration order was made against the husband and trustees in bankruptcy were appointed on 18 May 2009. The husband was discharged from that bankruptcy on 14 July 2012.
Between the date of the sequestration order and until very recently, the husband has been the applicant in a number of proceedings in the Federal Court, both at first instance and on appeal. Relevant to the challenges mounted in this appeal, the husband was unsuccessful in his appeal against the sequestration order. (see, [Sresbodan] v The Hills Shire Council (No. 3) [2012] FCA 523).
Later, the husband sought to have the sequestration order annulled. That application was summarily dismissed by Foster J in a decision delivered on 4 July 2013 and amended on 8 July 2013 (see, [Sresbodan] v The Hills Shire Council [2013] FCA 652). An application for leave to appeal that decision was dismissed by Yates J on 5 August 2013 ([Sresbodan] v The Hills Shire Council [2013] FCA 765).
Earlier, the husband had successfully appealed a decision of the trustees in bankruptcy that no “protected money” formed part of the outlay for the purchase of a property jointly owned by the husband and wife. That property was sold by the trustees and the wife, who had been appointed as trustees for sale. Despite being successful on appeal before Emmett J against the trustees’ decision, the husband sought to appeal to the Full Federal Court against Emmett J’s orders. That appeal, too, was unsuccessful. The cumulative effect of the proceedings in the Federal Court just outlined is that the sequestration order stood as having validly been made and the trustees in bankruptcy were validly appointed.
Mr Sresbodan represents himself in the proceedings before us, and that brings with it significant difficulties. That matter being fully appreciated, nevertheless, as the transcript of these proceedings will readily reveal, significant difficulties attend an understanding of the challenges made by the appellant to the orders of Fowler J. With respect to the self-represented husband, the grounds of appeal contained in the notice of appeal filed 3 July 2013 are largely incomprehensible. An understanding of the challenges purported to be made in the grounds is not, again with respect, assisted by the summary of argument, which was also prepared by the husband himself. Those difficulties are both illuminated and exacerbated by the husband’s oral submissions before us, as the transcript will readily reveal. By way of example of the points just made, ground 8 of the notice of appeal reads:
Paragraph #17: The case … in the Federal Court when “the Honourable Justice” Emmett “made a determination” ought never to have been brought by my then-solicitor, [Ms P], because the issue of “protected property”, under s. 116 of the bankruptcy Act 1966, was and is not now a consideration in distributing monies obtained from an UNLAWFUL SALE. That case was a SUBTERFUGE, and part of the extensive COVER-UP of the CONSPIRACY TO DEFRAUD me of my property.
In support of that ground, the husband’s written submissions state:
8. CASE … IN THE FEDERAL COURT WAS ANOTHER “GOAT OF THE JUDAS”:
(Re: paragraph # 8 of the “PART E – Grounds of Appeal)
Another lawyers who was supposed to be working for me tried led me into a trap with all lawyers and judges telling me, “You are bankrupt” – when I was NEVER bankrupt. [Ms P] created the case in the Federal Court … on the pretext and lie that “[Mr Sresbodan], you are a bankrupt” and the best I can do is claim back a small portion of the money from the ILLEGAL SALE by saying that little bit is “PROTECTED MONEY under section 16 of the BANKRUPTCT ACT 1966”. But I have NEVER been bankrupt and my property has been STOLEN by LYING LAWYERS.
The reference to “having never been bankrupt” is again reflected in an oral submission made by Mr Sresbodan before us this morning. The thrust of that submission tends to suggest that a central challenge made by the husband before us – in a manner not, with respect, entirely properly explained – goes back to a challenge made to an order made by the Land and Environment Court. That central challenge can be seen as a, as it were, recurrent theme in the proceedings by Mr Sresbodan in the Federal Court and is exemplified in the reasons for judgment of Foster J in the proceedings earlier referred to, particularly at [123].
The difficulties posed by the grounds and the husband’s summary of argument are perhaps additionally exemplified by the husband’s list of authorities which reads as follows:
U.C.P.R. 1999 – SECT 667 (2) (b)
Magna Carter 1215.
Confirmation of Charters 1297.
Petition of Right 1627.
Habeas Corpus
Bill of Rights 1688
Universal Declaration of Human Rights 1948
R v Kirby; Ex parte Boilermakers’ Society of Australia (“Boilermakers’ case”) [1956] HCA 10;(1956) 94 CLR 254 (2 March 1956)
s.42 Real Property Act 1900
A reading of the grounds, together with the summary of argument, in my view, makes plain that the majority of challenges sought to be made by the husband to Fowler J’s orders are based on arguments which have been fully agitated by him in the Federal Court, both at first instance and on appeal.
Relevant to the proceedings before Fowler J, the net proceeds of sale of the property jointly owned by the husband and wife was $6,700,000. Fowler J observed (at [15]) that from those funds, $1,150,000 had been paid to the wife and $150,000 had been paid to the husband. In the proceedings before Fowler J, the husband sought a further payment of $250,000 for “…legal costs already incurred and for future cases in District, Local, Supreme, Federal and Courts of Appeal, and most likel [sic] into the High Court, to repay monies lent to me by friends and for living expenses.” The husband also sought an order before Fowler J that the trustees:
...be struck out of the proceedings because they have not [sic] standing to take party in any way... I have never been bankrupt and what the OFFICIAL RECEIVER ... did on 18 May 2009 was to ISSUE A FALSE INSTRUMENT.
I pause to observe that, again, the recurrent nature of the assertions made by
Mr Sresbodan both in the proceedings before Fowler J and in the proceedings before us this morning are readily apparent.
Finally, the husband sought an order before Fowler J that “…[K Firm] and [Mr O] NOT be allowed to participate in ANY WAY in these proceedings because they have ALREADY been STRUCK OUT of the Family Court...”
The trustees
Watts J joined the trustees to the proceedings between the husband and the wife pursuant to section 79(11) of the Family Law Act 1975 (Cth) (“the Act”) in August 2009. The husband did not appeal that decision. Insofar as the challenge to the trustees’ “standing” is based on an argument that he was never a “bankrupt”, Fowler J considered at length the claims made by the husband in the Federal Court in support of his application for an annulment of his bankruptcy (which was dismissed by Foster J in the proceedings to which I have earlier referred) (reasons at [13]-[29]). Significantly, and with respect, correctly, his Honour held at [29] that:
29.The matters raised by the husband in the second order which he seeks are those which will, it seems, be canvassed by the Federal Court in the proceedings due to come before Justice Foster in June. That Court having been seized of the matters referred to it, it is not the intention of this Court to embark on a consideration of them.
As noted earlier, Foster J summarily dismissed the husband’s annulment application and leave to appeal against that decision was refused. While none of the grounds of appeal challenge directly Fowler J’s treatment of paragraph 2 of the orders sought by the husband, namely, that the trustees be “struck out of the proceedings”, grounds 1, 4 and 5, and 7 through 13 of the husband’s notice of appeal seek to challenge the standing of the trustees and the validity of the sequestration order. Leaving aside the important matter of the jurisdiction of this Court to review the making of a sequestration order and the potential applicability of the doctrine of res judicata, the fact that this issue has been canvassed extensively in the Federal Court readily disposes of these grounds. They are entirely without merit.
The intervenors
K Firm and Mr O, solicitors for the husband, have established a provable debt against the husband’s estate of almost $250,000 (see, [K Firm] v [Mr O] in the matter of the Bankrupt Estate of [Mr Sresbodan] [2012] FCA 333). They also assert post bankruptcy debts. Those latter debts stem from costs orders made in their favour against the husband both in the Family Court and in the Federal Court. Those parties have previously sought to intervene in proceedings in both the Family Court and in the Federal Court.
As to the Family Court, the husband successfully appealed a decision of Watts J joining the solicitors. In so determining, this Court held that the trial judge had erred by failing to consider the impact, if any, of section 58(3) of the Bankruptcy Act 1966 (Cth) on the solicitors’ right to intervene. On 12 March 2013, Mr O sought leave to be heard in respect to the husband’s application before Fowler J, seeking the release of funds to him. His Honour recorded (at [28]) of the reasons that:
…[Mr O] does represent third parties who have an interest in the current application. [Mr O] did not and does not seek that those third parties be joined as a party to these proceedings. Rather, he wanted to be heard and in a very short time he was heard, supporting in effect the position of the Trustees. It is not the view of the Court that this degree of participation was unreasonable
It seems, then, that his Honour was satisfied that the intervenors ought be heard, albeit in the limited way just described and, as a result, rejected the husband’s application for an order that they “...NOT be allowed to participate in ANY WAY in these proceedings...”
It is submitted on behalf of the trustees, that the intervenors have standing to join the proceedings pursuant to section 79(10)(a) of the Act on the basis that they are a creditor of the husband and they “...may not be able to recover his or her debt if the order were made.” The trustee submits that if an order were made that the husband receive $250,000, the intervenors may not be able to recover their debt.
Whilst, as submitted by the trustees, the intervenors would be precluded by virtue of section 79(10A)(a) of the Act from intervening if their debt was confined to a “provable debt”, the intervenors’ debt extends to costs orders made in their favour against the husband post-bankruptcy and, in those circumstances, it seems that section 79(10)(a) applies, at least insofar as the debt is confined to the post bankruptcy debt.
Thus, insofar as ground 6 challenges his Honour’s failure to preclude the intervenors, it has no merit.
The failure to make an interim property order
As framed, it would appear that the central challenge made to his Honour’s orders relates to his Honour’s refusal to provide to the husband the sum of $250,000 earlier referred to. Significantly, no grounds and nothing in the summary of argument challenge specifically his Honour’s dismissal of the husband’s application for interim property orders in that amount. Nevertheless, in deference to the self-represented status of the applicant and to his oral arguments before us this morning, we consider it appropriate to consider whether his Honour erred in so refusing that application.
His Honour considered the principles governing applications of that type (see, for example, Strahan & Strahan (2011) FLC 93-466) and did so in some detail in his reasons (see 33-43).
Having detailed the “two-part process” set out in Strahan (reasons at [34]-[40]), his Honour went on to give extensive consideration to whether the circumstances of this case warranted the making of an order as sought by the husband (reasons at [44]-[70]). In refusing the application, his Honour observed that if the wife was wholly successful in her claim for property settlement orders, based on amounts presently owing to creditors, factoring in amounts already received by way of interim property settlement, and noting that the Federal Court had determined that the husband had a 15.05 per cent interest in the sale proceeds of the property and that the trustees had a lien over that interest to cover their costs, it was unlikely that there would be any remaining funds from which the husband’s entitlement could be paid or that an order as sought by the husband, if made, would be “capable of alteration at any time prior to, or as part of, the final exercise of the section 79 power” (see, for example, reasons at [46]-[47], [55]-[57] and [62]-[69]).
His Honour held that that latter factor alone, which his Honour referred to as “the adjustment issue” by reference to, for example, Strahan at [136], where this Court said that “…the discretion conferred by the power in s 79 is to make such order as the court considers appropriate, provided it is just and equitable to make the order in circumstances where the power will not be exhausted by the interim order … the interim order must be ‘capable of alteration at any time prior to, or as part of, the final exercise of the section 79 power’”, was sufficient to dispose of the husband’s application:
49.Upon application of the test for adjustment identified in the case law set out above, even assuming that the Court found in favour of the husband on the other steps specified in Strahan, the Court is satisfied that the adjustment problem would alone cause its rejection of the husband’s application. The Court would on that basis find that it would not exercise the power.
His Honour also noted that the:
48....further costs to be incurred by the husband are not known. If he is successful and recovers some costs, that may well be one event. Equally, however, if he loses, he will have paid money to no purpose and will, in addition, have perhaps some further liability for costs.
Further, his Honour held that:
51.The husband says that he has no money but he makes no full disclosure of his current financial position. He says that he needs to meet future legal costs, but gives no details of to whom, for what amount and for what purpose those costs will be incurred.
Thus, it can be seen that his Honour had reference to the relevant principles applicable to applications of the type under consideration by reference to decisions of this Court, for example, in Strahan and also to earlier decisions, for example, in Zschokke & Zschokke (1996) FLC 92-693. Nothing to which the husband refers in the “grounds” or in his written or oral arguments suggests any error was made by his Honour.
Thus, notwithstanding the fact that neither the grounds of appeal nor the written argument on behalf of the husband challenges specifically or asserts any error specifically in respect of this aspect of his Honour’s judgment, we can for ourselves discern no error at all in what his Honour found and ultimately ordered in that respect (see, for example, Warren v Coombes (1979) 142 CLR 531).
The order setting aside the subpoena
In the proceedings before his Honour, the husband “…sought to issue a subpoena to the Trustees…” to produce “[t]he complete file for the estate of the husband...” The trustees sought to have it set aside. His Honour observed in the reasons that there is “…no express power to set aside a subpoena in the Family Law Rules 2004” (reasons at [73]) and went on to consider the court’s power at “common law” by reference in particular to this court’s decision in Hatton & The Attorney-General of the Commonwealth of Australia & Ors (2000) FLC 93-038 , in which it was said that “[t]he existence of a power in this court to set aside subpoenae seems to have long been assumed or accepted…”
In dismissing the husband’s application, his Honour determined that (1) the subpoena, being directed to the husband’s entire file, was too broad in its scope and was, thus, oppressive; and, (2) the documents sought as part of the subpoena must be relevant to issues before the court in which it was issued and, in the circumstances of this case, the only relevance the documents could have would be to issues before the Federal Court (reasons at [78]-[79]). We can see no error in what his Honour there said. In any event, no challenge is mounted to those findings. Instead, ground 14 asserts that:
“For FOWLER J to set aside by SUBPOENA of the complete file of my “BANKRUPTCY” held by the “TRUSTEES” is to CONCEAL EVIDENCE leading to a charge of CONCEALING A SERIOUS OFFENCE under the Crimes Act 1900. Those documents are TESTIMONY proving the FRAUD OF BANKRUPTCY”.
Quite what that means is, to me at least, unclear. It plainly does not constitute a ground of appeal. It, however, reveals that as Fowler J properly asserted at [78] of the reasons, the only relevance that the documents sought to be obtained could have would be in respect of the application for annulment of the sequestration order, which was the subject of the proceedings in the Federal Court.
Ground 2 similarly asserts that the documents sought to be obtained by way of subpoena were sought to prove that “...the documents ... detailed the facts pertaining to the FRAUDULENT practices and procedures used to DISPOSSESS someone of their property under the guise of declaring them BANKRUPT...”
The “ground” plainly supports his Honour’s finding that the documents, insofar that they were relevant, were relevant to the husband’s application for annulment in the Federal Court as distinct from any proceedings before his Honour.
The written submissions in support of ground 2 appear to raise a further issue. They contend that “FOWLER J WENT AGAINST HIS WORD THAT I WAS ENTITLED TO DISCOVERY BY WAY OF SUBPOENAEING THE FILES OF THE SO-CALLED TRUSTEES HAVE ON ME.”
Leaving aside that, again, that does not constitute a ground of appeal, the transcript of the proceedings before Fowler J reveals the following exchange in which the husband, contrary to the application that he had made and earlier indications given to his Honour, sought not documents, but rather sought a subpoena such that the trustees would give evidence:
[MR SRESBODAN]: Can I, your Honour, have leave to a subpoena?
HIS HONOUR: Who to?
[MR SRESBODAN]: Thank you.
HIS HONOUR: Who to?
[MR SRESBODAN]: Well, I have a solicitor – to subpoena a solicitor and so‑called – my two trustee – then [Mr H], who was acting as a trustee, because I really don’t know, your Honour, that I have a so‑called trustee, because I pay my debt – what I’ve been ordered to do.
HIS HONOUR: I hear what you say, mister – I hear what you say. You’ve made that all so clear that that’s your view. Is there any objection to the leave being granted?
MR GRANT: Well, your Honour, yes, I do object, because the trustees will be putting on an affidavit. And if they put on an affidavit, that’s a different course.
HIS HONOUR: Yes. The trustee is becoming a party to these proceedings. You’re entitled to ask for discovery against them, in those circumstances, I would think.
MR GRANT: Well, [Mr Sresbodan] could ask for disclosure if he wished, but the point – I thought if the trustees put on an affidavit, your Honour, they could be required for cross‑examination. It’s ‑ ‑ ‑
HIS HONOUR: If it’s to produce documents – it’s to produce documents that you want?
[MR SRESBODAN]: No – just to be witness.
HIS HONOUR: Well, if the trustee files an affidavit, which they’re indicating they will, all you have to do is give the trustee notice to attend for the purpose of cross‑examination; you follow?
[MR SRESBODAN]: Yes. Just for cross‑examination, because I never have trustee, because I pay my debts – what I been ordered to pay from the .....
HIS HONOUR: I hear what you say in that regard, [Mr Sresbodan]. Thank you. But you may give notice to anyone who is appearing, who files an affidavit, to attend for cross‑examination.
[MR SRESBODAN]: Yes. Okay.
HIS HONOUR: Now, is there any of those people that you wish to subpoena who’s not a party to these proceedings at the present time?
[MR SRESBODAN]: Yes, but those people ..... my trustee, but actually they are not. I have evidence that I – they are not, your Honour.
HIS HONOUR: Yes. Well, if it’s the trustee only, then it’s covered by what has been said.
MR GRANT: Yes, your Honour.
(Transcript of proceedings, 12 March 2013, pp 5-6).
The determination of the application for leave to appeal
As I have earlier said, the orders appealed from are interlocutory in nature. The husband must obtain leave (see, section 94AA of the Act and reg 15A of the Family Law Regulations 1984). None of the “grounds”, nor anything contained in the husband’s written submissions, reveal an error of principle or a substantial injustice or that the issue is one of general importance. In those circumstances, leave ought to be refused (see, for example, Bruce F McLaren Holdings Pty Ltd & McLaren (2000) FLC 93-030).
For completeness, I would add that even if leave to appeal was granted, then “[h]aving regard to the grounds of appeal as disclosed in the notice of appeal, it appears to [me] that the appeal has no reasonable prospect of success…” (see, section 96AA(1)(b), the Act).
It ought be noted that the current section 96AA was inserted into the Act in 2011 so as to bring the section “...more in line... (with) similar provisions in other Commonwealth Acts dealing with other Federal Courts” (Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011, Explanatory Memorandum, at 136).
One such Commonwealth Act is the Federal Court of Australia Act 1976 (Cth) (“FCAA”), which includes section 31A. That section provides, relevantly:
(2)The Court may give judgment for one party against another in relation to the whole or any part of a proceeding if:
(a)the first party is defending the proceeding or that part of the proceeding; and
(b) the Court is satisfied that the other party has no reasonable prospect of successfully prosecuting the proceeding or that part of the proceeding.
(Emphasis added).
What constitutes “reasonable prospects” for the purposes of section 31A was considered by the High Court in Spencer v the Commonwealth (2010) 241 CLR 118. Given the overt similarities between section 31A and section 96AA, in particular the use of the term “no reasonable prospects” and the fact that Parliament has made clear that the amendment to section 96AA was to bring it more “in line” with other Commonwealth Acts, such as the FCAA, statements of the High Court in Spencer concerning what constitutes “reasonable prospects” for section 31A can, and in my view, should provide assistance to this Court in ascertaining the meaning of that term as it is used in section 96AA.
French CJ and Gummow J observed in Spencer at [25] that a consideration of whether a matter has “reasonable prospects of success” “…requires a practical judgment by the Federal Court as to whether the applicant has more than a ‘fanciful’ prospect of success.” Significantly, cases falling within section 31A were said by their Honours to include:
...the case in which there is unanswerable or unanswered evidence of a fact fatal to the pleaded case and any case which might be propounded by permissible amendment. It will include the class of case in the longstanding category of cases which are “frivolous or vexatious or an abuse of process”.
In the instant case, the husband confronts the fact that proceedings in the Federal Court have disposed of his challenge to the validity of the sequestration order and, thus, his contention that the trustees ought never have been appointed. That is plainly a fact fatal to the majority of the husband’s grounds in the instant appeal. Further, and in any event, in my view at least, the challenges mounted in grounds 1, 4 and 5 and 7 through 13 fall within the “longstanding category of cases which are frivolous or vexations or an abuse of process’”, given that the challenges in those grounds have been the subject of a number of judgments of the Federal Court at both first instance and on appeal in recent times.
As to the remaining grounds of appeal, they do not disclose, in my view, errors amenable to appellant intervention and, consequently, could not be seen remotely to have any reasonable prospects of success. In all of those circumstances, had leave been granted pursuant to section 94AA, in my view, the appeal would nevertheless have undoubtedly failed.
Bryant CJ
I agree with the reasons of Murphy J and the order proposed and have only this to add. The Federal Courts in Australia, particularly the Family Court and the Federal Court, have jurisdiction under various Acts, some, it must be said, overlap. However, it is without dispute, that parties cannot agitate in one court the same cause of action that has been agitated in another court and has been unsuccessful. To do so, as Murphy J has pointed out, would be subject to a finding of res judicata and also raises the issue of abuse of process.
In fact, the appellant has not brought proceedings in this Court which have been agitated in the Federal Court. However, he nevertheless argues, whenever the opportunity arises, that this Court should deal with the subject matter of the actions in the Federal Court. Demonstrably, such arguments cannot be sustained and if the appellant continues to agitate these matters, rather than what is properly before this Court, he faces the inevitable failure of those arguments again and will divert himself, at least, from the issues properly before this Court.
Austin J
I agree with the order proposed and the reasons given by Murphy J. I also agree with the supplementary reasons given by Bryant CJ.
Costs
Bryant CJ
Following the delivery of reasons for judgment and the making of an order in this matter, the first respondent and the second and third respondents have sought an order that the appellant pay the costs of the appeal. Section 117 of the Family Law Act provides that each party shall bear their own costs, but that section has to be read in light of section 117(2), which provides the court may, if it is of the opinion there are circumstances that justify it in doing so, subject to subsection (2A) and other sections, make an order as to costs. In particular, section 117(2A) provides a number of factors to which the court should have regard when considering whether an order for costs should be made. It requires only one of those factors to be established for an order to be appropriate.
However, in this case, there are a number of subsections which have relevance, to which I will refer briefly. The first and second and third respondents contend that an order should be made on the basis that the proceedings by the appellant have been unsuccessful and have been wholly unsuccessful, as provided for in subsection (e). In addition, the second and third respondents have tendered to the court a letter which was written on 2 April 2014, and which the appellant concedes he received, and in that letter, they indicated to the appellant their view that the grounds of appeal articulated have no merit and it will be obvious in the reasons for judgment that the court has found that to be borne out. They also raise the point that many of the asserted grounds fail to meet the criteria of recognised grounds and the court has also found that argument to have merit.
In the letter referred to above, they invited the appellant to withdraw the appeal and indicated to him that if he did not do so and was unsuccessful, then they would seek to have a cost order made against him on an indemnity basis. Counsel for the second and third respondents has indicated that although the seeking of indemnity costs is not completely abandoned, the matter is within the court’s discretion to determine the basis upon which an order, if any, should be made.
In my view, this is a case in which it is appropriate for an order for costs to be made. First, it is the case that the appellant has been wholly unsuccessful and demonstrably, his grounds and arguments have been without merit. Secondly and importantly, in my view, certainly under subsection (g), which enables any other matter which the court considers relevant to be considered, it is, in my view, relevant that the unmeritorious nature of the appeal was pointed out to the appellant at an appropriate time. He was invited to withdraw the appeal so that there would be no costs incurred and put on notice that if he proceeded and was unsuccessful, an order for costs would be sought. The appellant rejected that offer then and confirmed to us his rejection of the proposition that he should have withdrawn his appeal, let alone even given consideration to the matters in the letter.
Accordingly, in my view, on those bases, it is appropriate for there to be an order for costs and I would propose that there be an order that the appellant pay the costs of the first respondent and the second and third respondent in relation to the appeal on a party-party basis (not an indemnity basis) in such sum as may be agreed, and in default of agreement, such sum as is assessed.
Murphy J
I agree with the order for costs proposed by Bryant CJ and with her Honour’s reasons; I have nothing to add.
Austin J
I agree with the orders proposed and the reasons given by Bryant CJ.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Murphy and Austin JJ) delivered on 15 May 2014.
Associate:
Date: 19 June 2014
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