Stapleton & Bryant (Security for Costs)
[2009] FamCAFC 63
•28 April 2009
FAMILY COURT OF AUSTRALIA
| STAPLETON & BRYANT (SECURITY FOR COSTS) | [2009] FamCAFC 63 |
| FAMILY LAW – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Where the respondent mother sought the father lodge security in relation to his appeal against the parenting orders of the trial Judge – Where having regard to the father’s earning capacity an order for security would not stifle the litigation – Where outstanding costs orders in favour of the mother – Where father failed to disclose financial position – Where Court unable to discern any ability to meet a costs order – Application granted FAMILY LAW – APPLICATION IN AN APPEAL – SECURITY FOR COSTS – Where the father sought the mother lodge security for costs in relation to his appeal against the orders of the trial Judge – Where the father sought the mother’s solicitor lodge security for costs in relation to his appeal against the orders of the trial Judge – Where father’s application misconceived – Application dismissed FAMILY LAW – APPLICATION IN AN APPEAL – PROVISION OF TRANSCRIPT – Where respondent mother sought an order that the father provide transcript of the proceedings before the trial Judge – Where father asserted he could not afford transcript – Where father warned of difficulties of successfully prosecuting an appeal against a discretionary judgment without transcript – Application dismissed FAMILY LAW – APPLICATION IN AN APPEAL – Where father sought under order under s 118 against the mother and the mother’s solicitor – No merit in orders sought – Where father sought issue of subpoena directed to Legal Aid Commission – No basis for subpoena demonstrated – No orders made FAMILY LAW – COSTS – Where mother’s application for security for costs was successful – Where father’s application was unsuccessful – Father ordered to pay the mother’s costs of the application |
| Family Law Act 1975 (Cth) – ss 117, 118 Family Law Rules 2004 (Cth) – r 1.10, r 22.09(1), r 22.18, r 22.20, r 22.22 |
| CDJ v VAJ (1998) 197 CLR 172 Fennessy & Gregorian(Security for Costs) [2008] FamCAFC 89 Halsbury & Halsbury [2008] FamCAFC 170 Jones & Jones (2001) FLC 93-080 Luadaka & Luadaka (1998) FLC 92-830 |
| APPLICANT: | Ms Stapleton |
| RESPONDENT: | Mr Bryant |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Hamilton |
| FILE NUMBER: | MLC | 553 | of | 2007 |
| APPEAL NUMBER: | SA | 56 | of | 2008 |
| DATE DELIVERED: | 28 April 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | May, Boland & Stevenson JJ |
| HEARING DATE: | 11 March 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 June 2008 (orders made 19 June 2008) |
| LOWER COURT MNC: | [2008] FamCA 451 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Testart |
| SOLICITOR FOR THE APPLICANT: | Jeremy Harper & Associates |
| ADVOCATE FOR THE RESPONDENT: | Mr Bryant appeared in person |
Orders
That the father file and serve any amended Notice of Appeal on which he seeks to rely on or before 1 May 2009.
That the amended Notice of Appeal referred to in Order 1 of these orders shall be deemed to be included in the appeal book filed by the father.
After compliance with Order 1 of these orders the father shall not without leave of the Court file any further amended Notice of Appeal.
That on or before 30 June 2009 the father lodge with the Registry Manager in the Melbourne Registry, Family Court of Australia the sum of $3,000.00 as security for costs of his appeal.
In the event that the father does not lodge the security as provided in Order 4 of these orders his appeal stands dismissed.
That the father pay the mother’s costs of her application for security for costs and the father’s response filed 10 March 2009 as agreed and failing agreement as assessed under Chapter 19 of the Family Law Rules, 2004.
That Order 2 of the orders made by Registrar Marrone on 5 November 2008 be varied by deleting therefrom items 2(u) to (y) being the transcript of proceedings before the Honourable Justice Dessau of 11, 12 13, 16 and 17 June 2008.
That the father’s response filed 10 March 2009 is otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Bryant & Stapleton (Security for Costs) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 56 of 2008
File Number: MLC 553 of 2007
| Ms Stapleton |
Applicant
And
| Mr Bryant |
Respondent
REASONS FOR JUDGMENT
Introduction
On 19 June 2008, after defended parenting proceedings instituted by Mr Bryant (“the father”), under Pt VII of the Family Law Act 1975 (Cth) (“the Act”) Dessau J made orders that the only child of the father and Ms Stapleton (“the mother”) live with the father on a two week cycle so that in week 1 the child lives with him from 9.00 am Friday until 9.00 am the following Tuesday, and in week 2, from the conclusion of kindergarten or 1.30 pm on Thursday until 5.00 pm on Friday. The orders provide for the child to live with the father for similar periods in school term time once the child commences primary school as well as half school holidays. The parties are to have equal shared parental responsibility for the child.
On 17 July 2008 the father, who was self-represented before the trial Judge and before us, filed a Notice of Appeal against the trial Judge’s orders. The Notice of Appeal set out in 42 paragraphs, some of which contain sub-paragraphs, the father’s challenges to the trial Judge’s orders. In the Notice of Appeal the father does not appear to set out orders he is seeking in the event that the appeal is allowed, but rather sets out previous interim consent orders.
Two applications were listed before us. The father also sought other orders in a Response filed the day before the applications were listed for hearing.
The mother filed an Amended Application in an Appeal on 13 February 2009. In her application the mother sought a number of orders relating to documents to be included in the appeal book, but her substantial application was for an extension of time to file an application for security for costs, and if such an extension of time was granted “[t]hat the respondent father (appellant) lodge such sum in this Honourable Court as this Honourable Court deem [sic] appropriate as security for the applicant mother’s costs of and incidental to the appeal proceedings”.
The father, in an Application in a Case filed 17 December 2008, sought “[t]hat leave be granted to amend the Notice of Appeal filed 17 July 2008 in matter SA56 OF 2008 and that the amended grounds be included in the Appeal Book”.
In his Response the father sought the following orders:
1.THAT THE MOTHER’S APPLICATION FOR SECURITY OF COSTS AND ALL OTHER APPLICATIONS IN AN APPEAL BE DISMISSED
2.THAT THE MOTHER AND APPLICANT SOLICITOR, [Ms O], BE DECLARED VEXATIOUS LITIGANTS AND NOT BE PERMITTED TO FILE ANY FURTHER APPLICATIONS WITH [Mr Bryant] AS A PARTY WITHOUT FIRST OBTAINING LEAVE OF THE COURT.
3.THAT THE MOTHER PAY THE RESPONDENT FATHER’S COSTS OF AND INCEDENTAL [SIC] TO THESE PROCEEDINGS FIXED AT $2491.00
4.THAT THE CONSENT ORDERS OF 24/7/06 BE MODIFIED SUCH
WEEK 1& 2 THU 3.30PM TO MON 3.30PM
WEEK 3 THU 3.30PM TO SAT 9AMWITH HALF OF ALL SCHOOL HOLIDAYS
5.THAT THE ORDERS OF DESSAU J MADE 19/6/08 BE DISCHARGED AND THE CASE REMITTED FOR EARLIEST RETRIAL WITH A JUDGE OTHER THAN DESSAU J
6.SUCH OTHER ORDERS AS THIS HONOURABLE COURT DEEMS APPROPRIATE.
IN THE ALTERNATE OR ORDER 5-6
5.THAT THE ORDERS OF DESSAU J MADE 19/6/08 BE STAYED PENDING APPEAL
6.THAT THE APPLICANT MOTHER AND HER SOLICITOR, [Ms O], BOTH LODGE HALF IN THIS HONOURABLE COURT AS SECURITY FOR COSTS OF AND INCIDENTAL TO THE APPEAL PROCEEDINGS OF THE AMOUNTS
i) $30,000 FOR THE 2009 APPEAL
ii) $55,000 FOR THE 2008 FAMILY COURT TRIAL
iii) $45,500 FOR THE 2006 FMC ADJOURNMENT
7.THAT THE RESPONDENT FATHER (APPELLANT) BE GRANTED LEAVE TO USE HIS AMENDED GROUNDS FOR THE APPEAL.
8.THAT LEAVE BE GRANTED TO CONDUCT THE APPEAL ACCORDING TO THE AMENDED FAMILY LAW RULES 2009.
9.THAT LEAVE BE GRANTED TO SERVE SUBPOENA TO LEGAL AID AND ADDUCE FURTHER EVIDENCE FROM THIS SUBPOENA.
10.THAT LEAVE BE GRANTED TO ADDUCE FURTHER EVIDENCE FROM THE FAMILY REPORTER, DR KENNEDY, AFTER HE IS PROVIDED WITH THE EVIDENCE IN CHIEF TRIAL AFFIDAVITS.
11.THAT THE COSTS ORDERS OF 3 MAY 2007, 26 AUGUST 2008 AND 30 SEPTEMBER 2008 BE SET ASIDE OR RESERVED TO THE APPEAL
12.SUCH OTHER ORDERS AS THIS HONOURABLE COURT DEEMS APPROPRIATE. [original emphasis]
Before us, the father acknowledged that the relief sought in paragraphs 4, 5, 10 and 11 of his Response were not appropriate applications to be brought before the Full Court by way of an application in an appeal.
We propose to first deal with the father’s application for an extension of time in which to file an amended Notice of Appeal. Second, we will consider the mother’s application for security for costs, and then deal with her application that the father provide the whole of the transcript of the trial in the appeal book. We will then give consideration to the relief sought in paragraphs 2, 6 and 9 of the father’s Response.
Background
Brief relevant background facts are contained in paragraphs 6-10 of the trial Judge’s reasons as follows:
6.The parents both come from and live in [W].
7.The father is [Mr Bryant]. He is 47 years old and a self-employed Engineering Simulation Software Designer.
8.The mother is [Ms Stapleton]. She works part-time as a primary school office/library assistant. She is 45. She has three older children who are aged around 21, 19 and 17. The two older girls live in [W] with their father [Mr Stapleton]. The younger son is living in Melbourne. Although [Ms Stapleton] is not living with [Mr Stapleton], they maintain a close relationship.
9.The parties’ relationship has been a complicated and tumultuous one. [Ms Stapleton] was married when she had an affair with [Mr Bryant], conceived, and gave birth to [the child]. She did not tell him of her pregnancy until shortly before the birth. She did not leave her husband until January 2004, when [the child] was seven months’ old. Then she lived with [Mr Bryant], returned to her husband for a day in February 2004, came back to [Mr Bryant] until April 2004, returned to her husband, then lived with [Mr Bryant] from about July/August 2004 until April 2006 when she and [the child] went to a women’s refuge.
10.This litigation started within a week with the father seeking time with the child. It started in a local Magistrates’ Court, was transferred to the Federal Magistrates’ Court, and later was transferred to this Court.
Father’s application for an extension of time in which to file an amended notice of appeal
As we have already noted the father, within the time provided by the Family Law Rules 2004 (“the rules”), filed an appeal against the orders made by the trial Judge on 19 June 2008. In support of his application to file an amended Notice of Appeal the father relied on his affidavit sworn 17 December 2008. In paragraphs 3 to 5 of his affidavit the father deposed:
3.That the Notice of Appeal filed 17 July 2008 was filed at the 11th hour always with the intention of reframing the grounds at a later date and preferably by a qualified solicitor if the appeal did not settle.
4.That the extensive Grounds in the Notice of Appeal filed 17 July 2008 were self-drafted in an [sic] narrative style with a reliance on the Father’s memory of the proceedings and the assumption that the trial transcript would be available if a Full Court hearing was required.
5.That in the circumstances and objectives of this case the trial transcript is not to be relied upon. It is respectfully submitted that to ensure procedural fairness the grounds need to be amended to allow the applicant Father to properly argue his case on the material error of facts within grounds appropriately framed.
The father annexed to his affidavit a form of Notice of Appeal in which he sought to challenge Orders 2, 4 and 10 of the trial Judge’s orders, and in that document, relied on 15 proposed grounds of appeal.
In his affidavit in support of his Response filed 10 March 2009 the father annexed another proposed Notice of Appeal in which he sought to rely on 18 proposed grounds of appeal, including a number of sub-grounds.
Before us, the father said he did not wish to rely on either of the Notices of Appeal annexed to his affidavits filed 17 December 2008 and 10 March 2009 but rather that he wished to file amended grounds of appeal such grounds being reduced in number.
The father deposed in his first affidavit to his belief that the Notice of Appeal could be amended without permission at any time until the appeal books were filed. The father also referred to the appeal rules introduced effective from 1 January 2009 noting that the rules now permit an amendment, without permission, up until the date for filing of the Summary of Argument.
The mother did not oppose the filing of an amended Notice of Appeal if the document was filed within 14 days.
Family Law Rules 2004
The mother’s Amended Application in an Appeal was filed on 13 February 2009. As we have already noted, in that application the mother sought she be granted an extension of time to file an application for security for costs. The father, in his application filed on 17 December 2008, sought leave be granted to him to file an amended Notice of Appeal. Both applications are drafted to reflect the requirements of the Family Law Rules 2004 (“the rules”) in force up until 1 January 2009.
Chapter 22 of the Family Law Rules, which chapter deals with appeals, was substantially amended by the Family Law Amendment Rules 2008 (No 2) Select Legislative Instrument 2008 No 245. The Explanatory Memorandum to the rules notes the rules amendment commences in two stages. The formal provisions and Schedule 1 commenced on the day after the rules were registered. Schedule 2 commenced on 1 January 2009 and applies to all appeals pending at, or commenced on or after, that date.
Insofar as the mother’s application for security is concerned, the rules do not proscribe any time limit within which an application for security for costs of an appeal must be filed. Therefore it is unnecessary for the mother to seek an extension of time in which to file her security application.
The father in his application filed 17 December 2008 seeks leave to file an amended Notice of Appeal. Such leave is not necessary. Rule 22.09(1) provides as follows:
The grounds of appeal and the orders sought in a Notice of Appeal may be amended without permission, at any time up to and including the date fixed for filing of the Summary of Argument by the appellant.
The orders made by Registrar Marrone on 5 November 2008 do not make specific provision for the filing of a Summary of Argument by a particular date but rather the father is obliged to file his Summary of Argument pursuant to r 22.22, that is, at least 28 days before the first day of the sittings in which the appeal is listed for hearing. The appeal sittings at which the father’s appeal is to be listed has not yet been notified to the parties. Accordingly the father is, without other orders of the Court, entitled to amend his Notice of Appeal without leave of the Court.
Discussion
Before us, the father made it clear it was his desire that his appeal should be dealt with as expeditiously as possible. Accordingly, and with the father’s concurrence, we propose to make an order that the father file his amended Notice of Appeal promptly.
The absence of the exact grounds on which the father seeks to challenge the trial Judge’s reasons, prima facie, is an impediment to us dealing with each party’s security application. However, as will become apparent later in our reasons, the father indicated to us the significant areas of challenge to the trial Judge’s reasons he proposed to agitate, and we have considered his Notice of Appeal, as filed, in conjunction with his oral confirmation of his challenges.
The mother has faced uncertainty, and no doubt increased costs, in having to consider the Notice of Appeal as filed, together with the two proposed Notices of Appeal annexed to the father’s affidavits. Accordingly, we propose, pursuant to r 1.10 of the rules to provide that the Notice of Appeal may not be further amended without leave of the Court. We are satisfied no procedural unfairness will be occasioned to either party by such an order in light of the father’s submissions to us about his proposed challenges to the trial Judge’s reasons, and his desire for his appeal to be heard without delay.
Mother’s application for security for costs
Background
On 5 November 2008 the Southern Appeal Registrar conducted a procedural hearing to settle the appeal book index and to make other necessary directions for the hearing of the appeal. On that occasion the father appeared in person and the mother was legally represented.
The directions made provided that the father should file the appeal book no later than 17 December 2008. It is not in dispute that the father has filed the appeal book although, contrary to the Southern Appeal Registrar’s orders, the appeal book does not contain the transcript before the trial Judge on 11 June 2008, 12 June 2008, 13 June 2008, 16 June 2008 or 17 June 2008, nor does it appear the whole of the exhibits have been included in the appeal book.
The father explained to us that he had obtained a CD of the sound recording of the proceedings before the trial Judge, but he had not obtained a typed copy of the transcript. He had not served a copy of the CD on the mother’s solicitors.
Evidence in support of the security application
The mother relied on two affidavits in support of her application for security, the first being an affidavit filed on 3 September 2008 and the second filed on 13 February 2009.
In her first affidavit the mother deposed that she sought an order the father pay $30,000.00 by way of security for her costs of and incidental to the appeal.
The mother deposed to receipt of income from two sources, namely a Centrelink parenting payment and family tax benefit of approximately $450.00 per week and income from part-time work of approximately $120.00 per week.
The mother further deposed to living in rented accommodation costing $220.00 per week. The mother said she was the joint registered owner of a property in rural Victoria (“the W property”) which she owned with her husband, Mr Stapleton (from whom she is separated).
She said she had received a grant of legal aid for proceedings in the Ballarat Magistrates Court, the Federal Magistrates Court and the Family Court in 2006 and 2008. She also said that she had been required by Victoria Legal Aid to provide an equitable charge over her interest in the W property. A caveat has been registered by Victoria Legal Aid over the W property.
The mother said she was in receipt of a grant of legal aid for the appeal, a term of which aid required she provide a further charge over her interest in the W property. The mother said she was required to repay all legal fees paid on her behalf “at some time in the future” if she and Mr Stapleton reach “agreement in relation to distribution of … property resulting in a transfer of property or a payment of money to [her], or if the property was sold or the property was used for security for a loan or other financial agreement” (paragraph 10).
The mother also deposed that, on 3 May 2008, an order was made by Registrar Fitzgibbon that the father pay the mother’s costs of and incidental to an application in the sum of $1,500.00. The mother deposed at the time of the swearing of her affidavit the father had not paid the costs as ordered.
The mother then referred to material in the father’s trial affidavit in which he set out, at paragraph 20, details of legal fees incurred by him. The mother thereafter deposed to proceedings listed in the Magistrates Court, Ballarat between B Pty Ltd and the father, as well as proceedings listed on 26 February 2008 in the Magistrates Court, Melbourne between T & Associates and the father.
Finally the mother deposed to the father being assessed to pay child support in the sum of $38.67 per month being child support assessed on an income of $22,000.00 per year.
In her second affidavit the mother referred to further costs orders being an order made by the trial Judge on 26 August 2008 that the father pay the mother’s costs in the sum of $1,500.00 and an order made by Mushin J on 30 September 2008 that the father pay the mother’s costs of an application heard on 12 August 2008 in the sum of $921.00.
At paragraph 17 of her second affidavit, the mother deposed “[t]o date the father has not paid to me or to this office the moneys owing by him in relation to the costs orders made 3 May 2007, 26 August 2008 and 30 September 2008”. The mother deposed to no significant change in her financial circumstances save and except she said she had been gifted a car by her mother.
In his affidavit filed 10 March 2009 the father deposed at paragraph 8:
I further point out that the application fee for my self-represented appeal was waived with a low income Healthcare card. This low-income consequent primarily of unreasonably protracted litigation, if not abuse of process including that which caused this appeal, which has cost me in excess of $100K and significantly delayed startup and hindered profitability of my [company]. Moreover this squandering of wealth limits our child’s future choices.
The father deposed that he was paying costs to Victoria Legal Aid by instalments. He annexed correspondence with photocopies of money orders in the sum of $50.00 payable to Victoria Legal Aid on 16 November 2008, 26 November 2008, 9 December 2008, 21 January 2009, 10 February 2009 and 3 March 2009. The father’s records disclosed as at 3 March 2009 he had paid $300.00 and an amount of $1,200.00 remained due and outstanding in respect of the costs order made on 26 August 2008.
The father made a number of assertions to the effect that the mother had engaged in a course of conduct to delay proceedings. Whilst acknowledging that he was in receipt of legal aid for the trial, the father deposed, at paragraph 9, that a “costs order made to Legal Aid 1½ years ago does not afford the Mother a free kick to delay the appeal for personal advantage”.
In answering what he described as “the mother’s unsubstantiated allegations” that he was impecunious, the father referred to evidence of the mother’s subpoenaed wage records and child support assessment at trial. We note the wage records are not included in the appeal book and were not before us. The trial Judge’s finding that the husband is a self-employed engineering simulation software designer was referred to by the father.
At paragraph 11(iv) of his affidavit the father said:
I continue to develop simulation software and consult from my home/office, which is my choice to allow me more time to care for my daughter. I receive a small government grant and occasional private assistance to help fund a startup company that has been delayed and profitability hindered by unfairly prolonged litigation and our present economic climate. …
The father then submitted it would be oppressive for him to pay any security for costs. The father provided no details of his income and expenditure or of any assets or liabilities.
Later in his affidavit, at paragraph 31, the father deposed that his child support payment had been reduced to nil without any change to his income.
The law
The relevant principles applicable to an application for security for costs are well known. In Luadaka & Luadaka (1998) FLC 92-830 the Full Court set out the relevant principles as follows:
38. Section 117(1) provides that, subject to sub-section (2), each party to proceedings under the Act shall bear his or her own costs. Section 117(2) provides that if in proceedings under the Act the court is of the opinion that there are circumstances that justify it in doing so the court may, subject to sub-section (2A), make such order for security for costs as the court considers just. Section 117(2A) provides that in considering what order should be made the court shall have regard to the matters set out in paragraphs (a) to (g) inclusive. Section 117(2A)(g) provides that the court shall have regard to such other matters as the court considers relevant.
…
61. In our opinion, when dealing with an application for security for costs the general rule provided for in s 117(1) applies, namely that subject to s 117(2) each party to proceedings shall bear his or her own costs. However, if the court is satisfied that there are circumstances that would justify an order then the court may, subject to s 117(2A), make such order for security for costs as the court considers just. It is not necessary to establish that there are special circumstances. However, it is necessary to establish that there are justifying circumstances. The decision to order security for costs is discretionary, both as to whether to order security, and as to the amount to be secured.
62. The purpose of an order for security is to secure justice between the parties by ensuring that an unsuccessful party does not occasion injustice to the other. In considering whether or not to make an order, apart from those referred to in s.117(2A), matters which may be relevant include the following:
62.1 It may be relevant to take into account the means of an applicant to satisfy an order for costs if he or she is unsuccessful. Ordinarily the means of the applicant is not alone sufficient to justify an order for costs because of the rule that poverty should be no bar to justice. This is reinforced by s.117 (1). However, the financial circumstances of the applicant do not prevent an order being made if there are other grounds which justify an order. Financial weakness may be relevant, for example, if the applicant is a company. In relation to the means of the respondent, who is the applicant for security, it was held by Goldstein J in Alexander and Alexander (supra) and Gee J in B and B (supra) that the question is whether or not the respondent is able to pay his or her costs. Section 117(2A)(a) requires consideration of the financial circumstances of both parties. However, we do not accept that it will only be in cases where the applicant for security does not have the means to meet his or her costs that an order would be made. In appropriate circumstances an order may be made even if the applicant for security has the means to pay his or her costs.
62.2 The prospects of success is a relevant matter to take into consideration: Parkinson & Co Ltd v Triplan Pty Ltd (supra). However, ordinarily the court will not undertake a detailed assessment of the likelihood of the applicant's success unless it can be demonstrated that there is a high probability of success or failure: Porzelack KG v Porzelack (UK) Ltd [1987] 1 WLR 420; Appleglen Pty Ltd v Mainzeal Corporation Pty Ltd (1988) 79 ALR 634; Equity Access Ltd v Westpac Banking Corporation (1989) ATPR ¶40-972. This is because of the lack of material at the time the application is dealt with. However, such an assessment may be possible in circumstances where, as in this case, affidavits have been filed in which the case sought to be made out is set out.
62.3 It is a relevant consideration whether the applicant's claim is made bona fide, whether it is genuine and not trivial, vexatious or a sham: Parkinson & Co Ltd v Triplan Pty Ltd (supra); Lynnebry Pty Ltd v Farquhar Enterprises Pty Ltd (1977) 3 ACLR 133; J & M O'Brien Enterprises Pty Ltd v Shell Company of Australia Ltd (1983) 7 ACLR 790.
62.4 It may be relevant to consider whether or not an order for costs would be oppressive or stifle the litigation. In Mantaray Pty Ltd v Brookfield Breeding Co Pty Ltd (1990) 8 ACLC 304 Byrne J said at 306:
“A factor in deciding whether security should be required is that the order may well mean that the action cannot proceed. That prospect does not require refusal of the application but it is often a significant matter.”
See also Rosenfield Nominees Pty Ltd v Bain & Co (1988) 14 ACLR 467 and Sydmar Pty Ltd v Statewise Developments Pty Ltd (1987) 5 ACLC 480.
62.5 It may be relevant to consider whether or not the litigation may involve a matter of public importance: Equity Access Ltd v Westpac Banking Corporation (supra); Jodast Pty Ltd v A & J Blattner Pty Ltd (1991) 104 ALR 248. In Quick on Costs at [ 4.9440] it is said that this will militate against the making of an order.
62.6 It may be relevant to consider whether or not there has been delay in bringing the application. An application may be refused if there is delay in making the application and prejudice is caused to the respondent to the application: Buckley v Bennell Design & Constructions Pty Ltd (1974) 1 ACLR 301 and Loreva Pty Ltd v Cefa Associated Agencies Pty Ltd (1982) 7 ACLR 164.
62.7 Other relevant matters may include any difficulties of enforcing an order for costs and the amount of costs to be incurred.
The applicability of these principles to appeals was confirmed by the Full Court in Jones & Jones (2001) FLC 93-080 where the majority of the Full Court (Ellis and Mullane JJ with whom Kay J largely agreed) said at 88,376-88,377:
20. There is no doubt that the wife is impecunious, that she may well be unable to proceed with the appeal if she is ordered to provide security and will be unable to meet an adverse order for costs in the appeal. The prospect, however, of the husband being left without a remedy in respect of a costs order if the appeal is dismissed is significant.
21. It has long been recognised that, as a general rule and in the exercise of an unfettered discretion, mere impecuniosity of a litigant who is a natural person, will not of itself be a basis for ordering that person to provide security. There is, however, an exception to that general rule, namely in the case of appeals. See Cowell v Taylor (1885) 31 Ch D 34 at 38, J & M O'Brien Enterprises Pty Ltd v Shell Co of Australia Ltd (No 2) (1983) 70 FLR 261 at 264, Ciappina v Ciappina (1983) 70 FLR 287 at 290 and Paton v Campbell Capital Ltd (unreported, Federal Court of Australia, 1 July 1993).
22. The fact that the wife would be unable to pay the costs awarded against her, if her appeal was dismissed, is, in our view, a significant factor to take into account in considering whether to exercise the discretion to order security in favour of the husband, but it is not the only or deciding factor.
It is useful that we set out the relevant statutory provision, namely s 117(2) of the Act. That section provides:
If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
Section 117(2A) to (5) of the Act are also relevant. Those sub-sections provide:
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g)such other matters as the court considers relevant.
(3)To avoid doubt, in proceedings in which an independent children’s lawyer for a child has been appointed, the court may make an order under subsection (2) as to costs or security for costs, whether by way of interlocutory order or otherwise, to the effect that each party to the proceedings bears, in such proportion as the court considers just, the costs of the independent children’s lawyer in respect of the proceedings.
(4)However, in proceedings in which an independent children’s lawyer for a child has been appointed, if:
(a)a party to the proceedings has received legal aid in respect of the proceedings; or
(b)the court considers that a party to the proceedings would suffer financial hardship if the party had to bear a proportion of the costs of the independent children’s lawyer;
the court must not make an order under subsection (2) against that party in relation to the costs of the independent children’s lawyer.
(5)In considering what order (if any) should be made under subsection (2) in proceedings in which an independent children’s lawyer has been appointed, the court must disregard the fact that the independent children’s lawyer is funded under a legal aid scheme or service established under a Commonwealth, State or Territory law or approved by the Attorney‑General.
Discussion
At the hearing of the mother’s application for security for costs we raised with counsel for the mother the fact that no breakdown of her likely costs to be incurred in respect of the appeal had been provided to us. Counsel for the mother undertook to provide details of Victoria Legal Aid’s scales fees payable for appeals to the Regional Appeal Registrar.
Shortly after the hearing we were provided with a copy letter from Victoria Legal Aid dated 12 August 2008 addressed to the mother’s solicitors which confirmed a grant of aid in respect to an appeal to the Full Court of the Family Court. Also supplied was a second letter from Victoria Legal Aid dated 13 February 2009 also addressed to the mother’s solicitors which disclosed a grant of aid effective from 13 February 2009, including a grant in the sum of $470.00 for counsel’s appearance on 11 March 2009, but excluding from the grant any sum for a security for costs application or preparation of the appeal books. The grant of legal aid for the appeal was expressed to be “subject to the stage of matter limit fixed in Fee Schedule 1L and the conditions set out in the Legal Aid Handbook”.
In the mother’s solicitor’s email to the Regional Appeal Registrar dated 11 March 2009 (which was also provided to us) the solicitor noted total solicitors’ professional costs payable in the sum of $1,550.00 and counsel’s fee for the appeal hearing of $1,235.00 (per day), together with a conference fee of $175.00. Receiving judgment, if on a separate day, was said to attract a fee of $330.00.
The mother’s solicitor gave a breakdown of costs incurred or to be incurred by the mother of $8,027.00. Those costs include the costs incurred by the mother at the stay application, which is subject to a costs order made in her favour already, and the costs of an application before Mushin J on 30 September 2008 also already the subject of a costs order in the mother’s favour. We have accordingly disregarded those sums in assessing the reasonable quantum of fees likely to be incurred by the mother.
We consider, having heard this application, that the appeal is likely to take half to one day. Accordingly, we consider the mother may incur further costs in relation to the appeal in the vicinity of $3290.00 comprising solicitor’s fees on the appeal of $1,550.00 and counsel’s fees for a one day hearing plus conference and attendance for delivery of reasons for judgment (although we note in respect of the latter that the appeal judgment may well be delivered interstate with copies available for collection from the Appeal Registrar).
We propose to consider this Application having regard to the criteria identified in Luadaka and Jones.
(a) the financial circumstances of the parties
By reason of lack of relevant material in the affidavits filed in support of and opposition to the application for security, we have considered the parties’ affidavits in the appeal book where relevant.
In his affidavit sworn 5 March 2008 the father said at paragraph 20:
My further interim Application was dismissed by Senior Registrar Fitzgibbon on 3 May 2007 with an Order that I pay [Ms Stapleton’s] costs of the Application fixed in the sum of $1,500.00. …
In the same affidavit the father deposed to living in a three bedroom home owned by his family and that he was self-employed with a research grant to develop software from his home office. The father deposed, at paragraph 42, “[a]lthough my business is not yet profitable, I am hopeful it will be in the future”.
The mother deposed in her affidavit, sworn 27 March 2008, to the parties’ agreement to equally share the child’s kindergarten and school fees at a regional college. The mother said she had paid a total of $1,075.00 to the college and the father had paid $342.50 (paragraph 104).
There is nothing in the father’s affidavit material before the trial Judge (except one reference to which we will shortly refer), or in his affidavit material filed in opposition to the mother’s application for security and in support of his application for security, to suggest he has any substantial assets with which he could satisfy payment of the mother’s costs in the event that his appeal is unsuccessful and a costs order was made against him.
Paragraph 21 of grounds of appeal is in the following terms:
THE JUDGED [sic] ERRED IN FAILING TO CONSIDER THE FATHER OFFERED TO SUBDIVIDE HIS LAND AND BUILD THE MOTHER A TOWNHOUSE ON IT TO ENABLE THE CHILD TO LIVE WITH BOTH PARENTS IN THE FAMILY HOME “BIRD NEST”.
The father’s affidavit filed in the Family Court, Melbourne Registry on 7 February 2007 (Exhibit “M1”) in the proceedings before the trial Judge sets out the only information we have located relevant to the father’s then asserted financial situation. At paragraph 64 the father said:
I believe my resolution proposals demonstrate my willingness to work out our difficulties. I offered to make my home a birds nest for [the child] and sub-divide my land to allow the mother to build a townhouse so [the child] would have immediate access to both parents. …
This evidence, prima facie, appears inconsistent with the father’s evidence that his home is owned by his family.
The father has also submitted that he should not be required to provide transcript of the proceedings for inclusion in the appeal books as he is unable to afford to do so. We have also taken into account that the father has not put evidence of payment of any of the outstanding costs orders referred to in the mother’s affidavit material totalling $3,921.00 save and except instalments totalling $300.00 made to Victoria Legal Aid. We note that the first costs order which remains unsatisfied was made in May 2007.
The father, whilst responding to a number of factual assertions made by the mother in her affidavit filed 13 February 2008, did not respond to assertions he was a defendant in legal proceedings and, in particular, the assertion that on 26 February 2008 proceedings were listed in the Magistrates Court, Melbourne between T Associates and the father.
Further, having regard to the level of child support assessed as payable by the father based on an income of $22,000.00 per annum, and now reduced to a nil assessment, we are not confident he would be able to meet a costs order from his income.
(b) the bona fides of the appellant
In her reasons for judgment the trial Judge, after carefully reviewing the evidence before her concluded, at paragraph 93 of her reasons, “[s]adly, what has become more and more clear in the course of this hearing is that there is a fundamental lack of trust between these parents.”
Earlier in her reasons, at paragraph 43, the trial Judge recorded her observation of the parties in the following terms:
Observing the parents in the course of this case confirms how different they are. They are like fire and ice. [Mr Bryant] is confident, loquacious and opinionated – to a fault. [Ms Stapleton] is retiring and withdrawn – to a fault. But there is no question that each parent has much to offer their daughter. I am confident that each is capable of parenting [the child] on a day to day basis. All of the evidence leads me to conclude that. Although the mother is the more cautious, and the father the more “laissez-faire”, neither style is fundamentally flawed or detrimental to [the child’s] well-being.
There is nothing in the mother’s affidavit material filed in support of this Application, or from our examination of the father’s present proposed grounds of appeal, which suggest a lack of bona fides on behalf of the father in wishing to pursue his appeal, although we note that the trial Judge was critical of the father’s treatment of the mother which she described at paragraph 39 of her reasons as “unrelenting and vicious criticism of the mother”.
We are unable, on the untested evidence before us, to accept the father’s assertions that the mother has duly protracted the litigation.
Overall, this factor is not a matter of significant weight in our consideration.
(c) Merits of the appeal
As we have already mentioned, the father indicated his present grounds of appeal were prepared in the timeframe provided by the rules and without the benefit of legal assistance. He accurately described the grounds of appeal as being drafted “in a narrative style”.
Doing the best we can with the grounds set out in the Notice of Appeal filed on 17 July 2008 we discern the father alleges that the trial Judge:
·failed to give appropriate weight to the recommendations of the Family Report writer;
·failed to give adequate reasons for the orders made which reduced the period of time the child lived with the father pursuant to interim orders;
·failed to give adequate weight to the effect of the orders on a meaningful relationship being maintained by the child with the father, paternal grandparents and significant others;
·erred in placing inappropriate weight on “the Centrelink shared parenting agreement”;
·erred in her evaluation of the Family Reporter’s oral evidence;
·erred in having regard to research conducted by Dr J McIntosh;
·failed to observe procedural fairness (by ensuring that the Family Reporter had all relevant documents);
·erred in failing to give appropriate weight to “the mental health conclusions of the MMTI-1 in the Family Report”;
·made findings which were against the weight of the evidence;
·erred in her conclusions and weight given to matters relevant under s 60CC(3)(c), s 60CC(3)(f) and s 60CC(3)(i);
·erred in placing inappropriate weight on the father’s affidavit filed 1½ - 2 years prior to the trial;
·failed to provide adequate reasons for her order that the father ensure the child attend kindergarten during his parenting time, for the making of a supervision order pursuant to s 65L, and for her Honour’s orders that, except in the case of emergency, the parties communicate with each other about the child by email or SMS.
Before us, the father submitted that his principal areas of complaint about the trial Judge’s reasons would be directed to several discrete complaints:
·that the trial Judge had failed to give sufficient weight to the “status quo” created by the interim orders and the effect of any change to those orders, or had made a mistake of fact about the interim orders which vitiated her exercise of discretion;
·that the trial Judge had erred in taking into account in her reasons an expert report, other than the report of the single expert, contrary to the rules;
·that the trial Judge had made errors of fact in her findings about the oral evidence of Dr Kennedy (the Family Reporter); and
·that the trial Judge had improperly directed the Independent Children’s Lawyer to introduce evidence of the research conducted by Dr Jennifer McIntosh.
Notwithstanding we indicated to the father the difficulties he may encounter absent the relevant portions of the transcript including transcript relevant to:
(i)the circumstances of the admission as an Exhibit the father’s affidavit sworn 5 March 2008 (which affidavit annexed another expert report);
(ii)the cross-examination of Dr Kennedy; and
(iii)the directions, if any, from the trial Judge to the Independent Children’s Lawyer about relevant research
the father asserted that it was unnecessary for him to have transcript to succeed on these grounds. Before us the father said:
[MR BRYANT]: …I don’t need the transcript and I don’t want the transcript and I can’t afford the transcript, and it’s going to delay the appeal or stifle it. So you know, if I just argue it on three grounds, with a couple of material error of fact ones that I’ve already explained, I do not see why I should be required to provide transcript. The mother’s solicitor wasn’t present at trial for three of the five days, and if she needs it for her defence, she should provide it.
MAY J: Well, of course, not having transcript is running an appeal at your risk.
[MR BRYANT]: I don’t see how I can otherwise - - -
MAY J: We’ve been trying very hard to explain to you what might come up as part of these arguments, where you will be in a position where you can’t substantiate your argument because you don’t have transcript.
[MR BRYANT]: Well, I’m not going to argue the grounds that I can’t substantiate. I’m only going to argue what is provable. I could argue the appeal now. (Transcript, 11 March 2009, pp 42-43)
The father’s position about the transcript will be referred to by us later in these reasons when dealing with the mother’s application that the father provide transcript in the appeal books.
Whilst we cannot in this brief examination determine in a conclusive way the merits or otherwise of the proposed grounds of appeal, particularly as the father has not provided transcript in his appeal books, it cannot be said that his grounds of appeal are entirely hopeless. However, we note that the majority of the grounds in the Notice of Appeal as filed are grounds attacking the exercise of discretion by the trial Judge. The limits on appellate interference with a discretionary judgment particularly in a children’s matter are well known (see CDJ v VAJ (1998) 197 CLR 172 at 230-231). We also note that the father conceded he was cross-examined about matters contained in Exhibit “M1” before its tender.
(d) the costs of the appeal
We have already referred to the breakdown of costs likely to be incurred by the mother in participating in the appeal, and the material provided from Victoria Legal Aid. Her expenses, other than this application, will be limited to the preparing by her solicitor or counsel of an Outline of Argument, and appearance by her legal representatives at the hearing of the appeal.
We also accept that she was legally represented at the procedural hearing. We do not find sufficient basis in the evidence before us to support the mother’s assertion that she should receive the sum of $8,027.00 by way of security of costs for the appeal as claimed in her solicitor’s letter. Her counsel modified her claim before us to seek such sum as the Court thought appropriate having regard to Victoria Legal Aid’s scale.
We are of the view that security in the quantum of approximately $3,000.00 would be an appropriate sum if we conclude it is appropriate to order the payment of security.
We note the mother is in receipt of legal aid for the appeal. In Fennessy & Gregorian(Security for Costs) [2008] FamCAFC 89 the Full Court in dealing with an application for security by legally aided applicants said at paragraph 57 of their reasons:
As the authorities make clear, in an application for security for costs, the Court must balance a number of competing considerations. A litigant whose appeal is not demonstrably without merit ought not lightly be denied access to justice. Conversely, the parties resisting such appeal ought not be put in a position where they are left financially disadvantaged by reason of an inability to recover their costs from the unsuccessful appellant if the appeal fails.
Although the mother is in receipt of legal aid and has an unquantified interest in her former matrimonial home she has an obligation to repay costs to Victoria Legal Aid. In Fennessy & Gregorian the Full Court, at paragraph 30 of their reasons, said:
…In determining the applications for security for costs, the Court may have regard to the grants of legal aid and their terms. We see no reason why parties to the appeal who are funded by the public purse should be disadvantaged in ways that parties who are privately funded are not.
Those comments have resonance in this case.
Conclusions – mother’s application for security
We have already noted the father has not put on any evidence of his financial position.
Taking into account the respective financial positions of the parties, the father’s failure to pay existing costs orders, and lack of discernable ability to meet any costs order if his appeal is unsuccessful, we conclude an order for security for costs should be made.
We are fortified in that view when we have regard to the majority of the present grounds of appeal which attack the exercise of discretion by the trial Judge, and the father’s assertions about the pivotal grounds on which he now seeks to rely, in addition to asserted errors of fact by the trial Judge. Notwithstanding the father’s confidence that the errors asserted are such that transcript is unnecessary, we are not persuaded those grounds are capable of establishment without relevant transcript. We also have regard to the final orders made by the trial Judge which provide for the parties to have equal shared parental responsibility for the child and the child to spend periods of substantial and significant time with the father, albeit not a regime of equal time as sought by the father at trial.
As we earlier indicated we are of the view the appropriate amount of security to be paid by the father is the sum of $3,000.00. We are satisfied the quantum of such sum is not likely to stifle the father’s appeal, particularly given his qualifications and expertise which suggest he has the capacity to earn an adequate income. We would further propose to give the father a reasonable period of time in which to pay such sum.
In reaching this conclusion we are conscious of the comments made by the Full Court in Halsbury & Halsbury [2008] FamCAFC 170. As the father referred to this decision, it is appropriate we say something about it.
In Halsbury & Halsbury the Full Court (Finn, Boland and Murphy JJ) made some general observations about applications for security in paragraphs 34-40 of their reasons for judgment as follows:
34.Before concluding we take the opportunity to make the following observations regarding applications for security in relation to the costs of an appeal. Such applications appear increasingly to be taking up the time and resources of the litigants and of the Court. The proper place of such applications and the competing rights that lie at the heart of such applications need to be borne in mind by those seeking them.
35.Appeals are a part of our system of law. They operate as part of the proper checks and balances on the actions and decisions of trial judges. Litigants have a right to appeal in circumstances where they, properly and bona fide, allege error on the part of the trial judge (subject of course to the requirements in certain circumstances of leave to appeal being granted). That right to appeal is an important part of our system of law. It should not be fettered except for good reason.
36.The remedy for those who have a basic right to enjoy the fruits of their judgment and who have that right disturbed by an appeal which is ultimately held to be unmeritorious, is to receive confirmation of the right by the dismissal of the appeal, and, frequently, to have their costs met by the unsuccessful appellant. Although it needs to be recognised in this jurisdiction that s 117 of the Act has the potential to impact on the latter part of that remedy.
37.As we earlier indicated, in the present case both parties put before us relatively detailed arguments in support of, and in opposition to, each ground of appeal. Furthermore, in the present case the wife had already demonstrated her bona fides, by having prepared and filed the appeal books on 7 November 2007. Thus the appeal could well have been heard in the Full Court sittings in which the application for security was heard.
38.Indeed, in our view, and with great respect to the husband and those advising him, the hearing before us of the security application at which it should be noted the husband was able to be legally represented, would have been better devoted to the hearing of the appeal itself.
39.It is also important to stress (but without in any way reflecting on the conduct or intentions of those involved in the present case) that applications for security for costs should not be regarded as a method of funding a respondent’s costs of legal representation in an appeal. This consideration should particularly be borne in mind in this jurisdiction where the fundamental rule regarding costs is that contained in s 117(1) of the Act, being that each party pays his or her own costs.
40.In relation to the present case, we note that the application for security was drafted on the basis that any security ordered to be paid would be paid to the respondent husband himself. Had security been ordered, the appropriate order would have been for it to be held in some form of trust or similar account or to have been paid into Court.
We wholeheartedly endorse those comments and would not wish to be seen in these reasons supporting security applications in the majority of appeals filed in this Court. But the circumstances of this case are different to those which pertained in Halsbury as a careful reading of that judgment will reveal. In Halsbury the respondent to the security application had disclosed assets likely to be sufficient to meet any costs order, and the parties had spent considerable effort in examining, in great detail, the merits or otherwise of the grounds of appeal which could have been conveniently argued at the appeal, rather than expending time and costs in dealing with the security application.
Although the father was critical of the mother and asserted she was delaying the appeal process we note that he filed his Notice of Appeal on 17 July 2008 but had on two occasions thereafter sought to rely on different grounds of appeal and, as at the date of this hearing, had still not finalised his grounds of appeal. Further we note that he had not complied with the orders made by the Regional Appeal Registrar to include transcript in the appeal book, no doubt necessitating the mother’s application for the inclusion of such transcript in the book.
In these circumstances, we are not of the view that the mother’s application for security for costs has unduly lengthened the appeal process, or that it is brought with a lack of bona fides.
Mother’s application that the transcript be included in the appeal books and father’s response to an application in an appeal filed 10 March 2009
As we have already recorded, before us, the father asserted that he did not need to obtain any part of the transcript to agitate his new grounds of appeal.
We note with the amendment of the rules the relevant provisions of the rules now dealing with transcript are r 22.20(3)(j) and r 22.18. We now set out the provisions of r 22.18:
(1)The appellant or, if so ordered, the cross‑appellant is responsible for preparing the appeal books, including arranging to obtain any transcript required to be included in the appeal books.
(2)If a Judge or Regional Appeal Registrar is satisfied that preparing the appeal books would impose exceptional hardship on the appellant, the Judge or Regional Appeal Registrar may order either of the following to prepare the appeal books:
(a) a respondent;
(b) the Regional Appeal Registrar.
Note If the Regional Appeal Registrar prepares the appeal books, the appellant or cross‑appellant (if so ordered) is still responsible for obtaining the transcript (see rule 22.27).
(3)When making an order under subrule (2), the court may order the appellant to pay the costs of preparing the appeal books.
Note 1 The party filing the appeal books must file and serve the number of copies ordered to be filed (see paragraph 22.17 (2) (c)). The number to be filed will include enough copies for each member of the Full Court. In addition, the number required to be served will be 2 copies for each other party.
Note 2 A party may apply for an extension of time (see rule 1.14).
Note 3 If a party fails to comply with the requirements for filing and serving the appeal books, the appeal is taken to be abandoned (see rule 22.21).
Although the rules have been renumbered, the relevant rules are in substantially the same form as the provisions of former rr 22.23 and 22.24.
We have already, in our consideration of the mother’s Application for security for costs of the appeal, considered the proposed grounds of appeal.
As we have already noted, the father has not disclosed in any appropriate way his present financial circumstances or demonstrated that he is unable to afford the cost of transcript or, in particular, the limited portion of the transcript relevant to the grounds he identified in broad terms before us.
We are satisfied we have clearly explained to the father the difficulty he may experience in agitating his appeal in the absence of transcript. However, he has made an informed choice that he wishes to prosecute his appeal without transcript.
It appears to us, given the father’s opposition to providing transcript despite difficulties which have been highlighted to him, that the father’s appeal, subject to payment of the security ordered by us, should be permitted to proceed without the necessity for transcript to be included in the appeal books.
We conclude that if the mother as respondent to the appeal is of the view that she requires transcript of the limited portions of the evidence to which the foreshadowed grounds relate she may, at her expense, obtain such transcript and, if appropriate, make application to the Full Court hearing the appeal in respect of her costs so incurred.
Father’s application the mother and her solicitor pay security for costs of the father’s appeal
We note that the father seeks security for his costs in respect of proceedings already determined by the Court and costs orders resulting from those proceedings. We do not consider those parts of the father’s application in these reasons.
The father submitted that the mother should be required to provide security on the basis that she was using the appeal proceedings to delay litigation in this Court. We have already rejected that submission.
We discern no basis in the father’s affidavit material, or in his submissions, which would support the making of an order for security for costs in favour of the father who is the appellant. We note the father conceded before us there was no basis for his application that the wife’s solicitor be required to pay one half of any security ordered. We find no merit in this application.
Orders sought under s 118
The father sought that the mother and her solicitor be subject to an order pursuant to s 118 of the Act. Section 118 provides as follows:
(1)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;
(b)make such order as to costs as the court considers just; and
(c)if the court considers appropriate, on the application of a party to the proceedings—order that the person who instituted the proceedings shall not, without leave of a court having jurisdiction under this Act, institute proceedings under this Act of the kind or kinds specified in the order;
and an order made by a court under paragraph (c) has effect notwithstanding any other provision of this Act.
(2)A court may discharge or vary an order made by that court under paragraph (1)(c).
We find no merit in this application and note that we have not dismissed the mother’s application for security. We further note the section does not provide a jurisdictional base for an order against the mother’s solicitor who is not a party to the proceedings. This aspect of the father’s application is misconceived.
Application for the issue of subpoena to victoria legal aid
The father’s affidavit filed on 10 March 2009 in support of this application disclosed no basis on which an order should be made by this Court for the issue of a subpoena directed to the Victoria Legal Aid Office as necessary for the proper prosecution of this appeal. Accordingly, we propose to dismiss that aspect of the father’s application.
Costs of the applications
The mother sought the father pay her costs associated with the applications. In particular she sought that the father pay her costs of the security application. The father was wholly unsuccessful in resisting the mother’s security application, and did not succeed in respect of majority of orders sought in his response. His application for an order for security for costs against the mother was without merit and misconceived. His application for an order under s 118 against the mother’s solicitor was doomed to failure. The mother was put to unnecessary expense in responding to these applications. We are satisfied in these circumstances that the father should pay the mother’s costs of these applications.
I certify that the preceding one hundred and six (106) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 28 April 2009
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