Stokey & Dye

Case [2023] FedCFamC1A 38

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Stokey & Dye [2023] FedCFamC1A 38  

Appeal from: Dye & Dye [2022] FCWAM 102
Appeal number(s): NAA 166 of 2022
File number(s): PTW 6165 of 2021
Judgment of: ALDRIDGE J
Date of judgment: 31 March 2023
Catchwords: FAMILY LAW – APPEAL – Application for leave to appeal on interlocutory orders – Where the wife’s son appeals against property orders – Whether the primary judge erred in refusing to make a s 102NA order – Application of relevant rules – Apprehension of bias – No error established – Leave to appeal from the interlocutory orders refused – Appeal dismissed.
Legislation:

Family Law Act 1975 (Cth) ss 39, 41, 69J, 102NA

Judiciary Act 1903 (Cth) ss 79, 80

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 11

Family Law Act 1977 (WA) ss 36, 39

Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) s 11

Restraining Orders Act 1997 (WA) ss 10H, 63(2)

Rules of the Supreme Court 1971 (WA)

Cases cited:

Gadde & Gadde [2019] FamCAFC 116

Jess & Jess (2014) FLC 93-620; [2014] FamCAFC 227

Jess & Jess (No 3) [2023] FedCFamC1A 2

Kabat & Garacia [2019] FamCAFC 191

Meadows & Meadows (2019) FLC 93-883; [2019] FamCAFC 1

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Rilak (No 2) [2022] FedCFamC1A 100

Robeck & Robeck [2018] FamCAFC 201

Tallant & Kelsey (2016) FLC 93-742; [2016] FamCAFC 207

The Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28

Valley & Valley [2005] FCWA 98

Yule v Junek (1978) 139 CLR 1; [1978] HCA 4

Number of paragraphs: 54
Date of hearing: 7 February 2023
Place: Sydney (via video link)
The Appellant: Self-represented litigant
Counsel for the First Respondent: Mr Sweetman
Solicitor for the First Respondent: KDK Family Law
The Second Respondent: Self-represented litigant

ORDERS

NAA 166 of 2022
PTW 6165 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR STOKEY

Appellant
AND:

MR DYE

First Respondent

MS DYE

Second Respondent

order made by:

ALDRIDGE J

DATE OF ORDER:

31 march 2023

THE COURT ORDERS THAT:

1.Leave to appeal against Orders 3, 4 and 6 made on 6 July 2022 is refused.

2.The appeal is dismissed.

3.Any party seeking an order as to costs is to file and serve written submissions on the issue of costs within 14 days.

4.Written submissions in response are to be filed and served within a further 7 days.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym

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AGLC
Stokey & Dye [2023] FedCFamC1A 38
Case
[2023] FedCFamC1A 38
Decision Date

CaseChat Overview and Summary

In the case of Stokey & Dye, the husband sought various interim orders in the context of ongoing family law proceedings. The husband filed a Form 2 Application in which he requested the husband to sign a freedom of information form for the release of his medical records, the appointment of a single expert, a ban on cross-examination, and various other orders. The application was made in the course of property division proceedings initiated by the husband and opposed by the wife. The husband subsequently sought leave to appeal against the refusal of the interim orders and the imposition of costs.

The legal issues before the court included whether the husband had established sufficient doubt regarding the decision at first instance to warrant reconsideration by the Full Court and whether the refusal of the interim orders and the imposition of costs would result in substantial injustice. The court also considered whether there was an error of principle in the original decision and whether the refusal of the interim orders and the imposition of costs would work a substantial injustice to the husband.

The court held that the decision at first instance was not attended by sufficient doubt to warrant reconsideration by the Full Court. The court also found that the refusal of the interim orders and the imposition of costs did not work a substantial injustice to the husband. The court found that the husband's complaints regarding the impartiality of the judge were not relevant to the appeal. The court dismissed the application for leave to appeal and the appeal against the costs.

The court ordered that written submissions be filed as to costs, so that the husband could address offers of settlement made. The court also ordered that the husband pay the wife's costs of the appeal.

Orders

Orders of the court

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Background

Background to the litigation

The reference to the “Form 2 Application” is a reference to an interim application filed by the applicant, in which he sought orders that: (1)Within 14 days the husband sign a completed freedom of information form for the release of his medical records held by Hospital C, Hospital D, a mental health unit and a health care centre for the production of medical records relating to the husband;(2)A single expert be appointed;(3)There be a ban on cross-examination in accordance with s 102NA of the Family Law Act 1975 (Cth) (“the Act”);(4)In the alternative to Order 1 and 2, the Court make findings that certain facts have been established by reason of a failure to disclose the documents sought by the applicant;(5)The husband not be allowed to present the documents the subject of the freedom of information request at the trial without the consent of the remaining parties;(6)Costs;(7)Payment of security for costs in sum of $20,000; and (8)The Court dismiss all parts of the husband’s case relating to non-disclosed documents. BACKGROUND In order to place the Form 2 Application (the interim application) into the appropriate context and so as to understand the appeal, it is necessary to set out some of the salient facts. According to the husband, a relationship with the wife commenced in 2015. They were married in 2016 and separated on 16 January 2021. On 22 July 2021, the husband filed an Initiating Application in the Magistrates Court seeking a property division between himself and the wife. The main property, subject of the proceedings, was a property located in Suburb B, which was registered in the sole name of the wife. Principally, the husband sought the sale of the property and that he receive 70 per cent of the net proceeds. The wife filed a Response on 31 August 2021, joining the applicant as the second respondent to the property proceedings. The wife sought a declaration that the applicant had a 33 per cent interest in the Suburb B property. The wife proposed that the husband receive 14 per cent of what she said was their 66 per cent interest in the Suburb B property. The applicant filed a Response on 6 October 2021 in which he also sought a declaration that he had a 33 per cent interest in Suburb B property. Annexed to his Response was a Statement of Claim which set out the basis on which he asserted he held a one third interest in the property. This led to the Form 2 Application (the interim application). THE APPEAL Leave to appeal Leave to appeal is granted, generally speaking, when the decision at first instance is attended by sufficient doubt to warrant to it being reconsidered by the Full Court and if substantial injustice would result if leave were refused, supposing the decision to be wrong (Jess & Jess (2014) FLC 93-620; Medlow & Medlow (2016) FLC 93-692). The Court said in Jess & Jess (No 3) [2023] FedCFamC1A 2:36.In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, Gibbs CJ, Aickin, Wilson and Brennan JJ said at 177:Nor is there any serious dispute between the parties that appellate courts exercise particular caution in reviewing decisions pertaining to practice and procedure. Counsel for Brown urged that specific cumulative bars operate to guide appellate courts in the discharge of that task. Not only must there be error of principle, but the decision appealed from must work a substantial injustice to one of the parties. The opposing view is that such criteria are to be expressed disjunctively. Cases can be cited in support of both views: for example, on the one hand, Niemann v. Electronic Industries Ltd.; on the other hand, De Mestre v. A. D. Hunter Pty. Ltd. For ourselves, we believe it to be unnecessary and indeed unwise to lay down rigid and exhaustive criteria. The circumstances of different cases are infinitely various. We would merely repeat, with approval, the oft-cited statement of Sir Frederick Jordan in In re the Will of F. B. Gilbert (dec.):“... I am of opinion that, there is a material difference between an exercise of discretion on a point of practice or procedure and an exercise of discretion which determines substantive rights. In the former class of case, if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal.”See also, Brambles Holdings Ltd. v. Trade Practices Commission; Dougherty v. Chandler. It is safe to say that the question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.(Emphasis added) (Footnotes omitted)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

That should have been the end of the matter. It was not. The applicant then went on to make complaints which could be seen as a challenge to the impartiality of the judge now hearing the matter. That, of course, has nothing to do with this appeal. CONCLUSION AND COSTS It follows that the application for leave to appeal will be dismissed and the appeal against the costs will also be dismissed. Where the appeal was to be dismissed, counsel for the husband sought that written submissions be filed as to costs, so that he could address offers of settlement made. I will make those orders.

Ratio Decidendi

Legal Principle Established

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