Sullivan and Tyler and Anor; (No. 2)
[2015] FamCAFC 179
•17 September 2015
FAMILY COURT OF AUSTRALIA
| SULLIVAN & TYLER AND ANOR (NO. 2) | [2015] FamCAFC 179 |
| FAMILY LAW – APPEAL – APPLICATION FOR A STAY OF FULL COURT ORDERS – where the appellant made a special leave application to the High Court to appeal the orders made by the Full Court of this Court for security for costs in relation to an appeal – where the Full Court considered there was a risk of the appeal being rendered nugatory if stay was not granted – the Full Court granted the stay pending disposition by the High Court of the special leave application. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Bennett v Bennett (2001) FLC 93-088 |
| APPELLANT: | Ms Sullivan |
| FIRST RESPONDENT: | Mr Tyler |
| SECOND RESPONDENT: | Ms Banks |
| FILE NUMBER: | SYC | 889 | of | 2008 |
| APPEAL NUMBER: | EA | 51 | of | 2013 |
| DATE DELIVERED: | 17 September 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, Thackray and Strickland JJ |
| HEARING DATE: | 15 September 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 12 April 2013 |
| LOWER COURT MNC: | [2013] FamCA 233 |
REPRESENTATION
| APPELLANT: | In person |
| FIRST RESPONDENT: | No appearance |
| SECOND RESPONDENT: | Appearing by videolink |
Orders
The operation of Orders 2 and 3 of the orders made by the Full Court on
28 August 2015 be stayed pending the disposition by the High Court of the application for special leave to appeal those orders filed 10 September 2015.
2. (a) Notwithstanding the provisions of Order 2 of the orders made by the Full Court on 28 August 2015, in the event that the application for special leave to appeal those orders is refused by the High Court, then the applicant-appellant,
Ms Sullivan, will have fourteen days from the date of the decision of the High Court, to lodge with the Registry Manager of the Sydney Registry of the Family Court of Australia the sum of $12,000 to be held as security for any costs awarded to the second respondent in relation to Appeal EA 51 of 2013.
(b) In the event that the applicant-appellant fails to lodge the security provided for in Order 2(a) of these orders, then Appeal EA 51 of 2013 in so far as it is directed to, or affects, the second respondent to the appeal, shall stand dismissed.
The application in an appeal filed 9 September 2015 be otherwise dismissed.
There be no order for costs in relation to the application in an appeal filed
9 September 2015.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Sullivan & Tyler and Anor (No. 2) has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 51 of 2013
File Number: SYC 889 of 2008
| Ms Sullivan |
Appellant
And
| Mr Tyler |
First respondent
And
Ms Banks
Second respondent
REASONS FOR JUDGMENT
These reasons for judgment concern an application for a stay of orders made by the Full Court of this Court pending the determination by the High Court of an application for special leave to appeal those orders to that Court.
Background to the application for a stay
On 28 August 2015 the Full Court ordered that Ms Sullivan provide security (in the sum of $12,000) for any costs which she might be ordered to pay in respect of the costs of the second respondent to an appeal which Ms Sullivan has filed against an order made by Loughnan J on 12 April 2013. The second respondent to the appeal in whose favour the order for security was made is Ms Banks.
By the order appealed, Loughnan J dismissed an application by Ms Sullivan for an injunction to restrain the ongoing publication of an electronic book which Ms Banks had written, and which concerned events in the life of Ms Sullivan’s child, and for certain related orders.
The order for the provision by Ms Sullivan of security for Ms Banks’ costs in the appeal was conditional on Ms Banks’ filing with the Eastern Region Appeals Registry an undertaking to the effect that she would use her best endeavours to remove the book in question from the internet and that she would not permit any future publication of the book.
The Full Court also ordered that in the event that Ms Sullivan failed to lodge the security within the required time, then her appeal in so far as it was directed to Ms Banks as second respondent would stand dismissed.
The precise terms of the Full Court orders were as follows:
(1) That within 14 days of the date of these orders, the second respondent to appeal EA 51 of 2013:
(a) shall file with the Eastern Region Appeal Registrar a written undertaking (in a form acceptable to the Registrar) that she will use her best endeavours to remove from the internet the book … and that she will not in future publish or permit to be published in any manner (including on the internet) that book; and
(b) serve copies (endorsed as to the date of service) of that undertaking on the appellant and on the solicitor for the first respondent.
(2) Within 14 days of the date of service of a copy of the undertaking referred to in Order 1 of these orders on the appellant, she shall lodge with the Registry Manager of the Sydney Registry of the Family Court of Australia the sum of $12,000 to be held as security for any costs awarded to the second respondent in relation to Appeal EA 51 of 2013.
(3) In the event that the appellant fails to lodge the security provided for in Order 2 of these orders, then Appeal EA 51 of 2013 in so far as it is directed to, or affects, the second respondent to the appeal shall stand dismissed.
On 4 September 2015 Ms Banks filed the required undertaking with the Appeal Registrar.
We were told at the hearing of the present application on 15 September 2015 that a copy of the undertaking was served on Ms Sullivan on 4 September 2015. Accordingly, Ms Sullivan then had fourteen days, that is until
18 September 2015, to lodge with the Court the required sum by way of security.
On 9 September 2015 Ms Sullivan filed an application in an appeal to stay the Full Court orders made on 28 August 2015 pending the determination of an application by her to the High Court for special leave to appeal those orders to that Court. A copy of her application for special leave, which was filed in the High Court on 10 September 2015, has been provided to this Court. The actual orders which Ms Sullivan seeks in her application to us will be set out later in these reasons.
Ms Sullivan’s application for a stay of the Full Court orders of 28 August 2015 was, as indicated earlier, listed before this Full Court for hearing on
15 September 2015 on an urgent basis.
Ms Sullivan was able to appear at that hearing in person. Ms Banks, who is resident in Victoria, was heard by telephone, but she had managed to file brief written submissions in advance of the hearing.
Ms Banks sought the dismissal of all orders sought by Ms Sullivan in her application in an appeal essentially on the basis that, as she explained at the hearing before us, the application for special leave to appeal to the High Court would, in her opinion, be found to be without merit.
Events following the hearing of the application for a stay
We are aware that on the day following the hearing of Ms Sullivan’s
application for a stay, Ms Banks attempted to file a document entitled
“Urgent Application in a Case – Adduce New Evidence” together with another document called “Second Respondent’s Urgent Submission to Adduce Extra [Evidence]”.
Ms Banks was apparently advised by the Appeal Registry that an application to adduce further evidence required a supporting affidavit. Ms Banks responded explaining the difficulty she would have in providing an affidavit, but also querying the necessity for an affidavit, and asking that her further documents be provided to the Full Court.
The Registry responded by saying that while her documents had been rejected for filing, they had been brought to the attention of the Full Court.
After her further documents had been brought to the attention of the bench,
Ms Banks then further advised the Registry that she wished to withdraw those documents, and that she wanted her position drawn to the attention of the Full Court.
It is not entirely clear how much of the above mentioned correspondence between Ms Banks and the Appeal Registry was copied to Ms Sullivan and for this reason we have set out details of that correspondence. We make it clear that nothing arising out of that correspondence, or of Ms Banks’ further documents, would have any effect on our decision, and thus there was no necessity for us to ask for any further submissions from Ms Sullivan in relation to Ms Banks’ further material.
We would, however, explain that it is the usual practice for the Judge or Judges, who have made a particular order, and if available, to determine any stay application made in relation to that order pending an appeal against
those orders to a higher Court. (See the decision of Gummow J in
De Lewinski v Director General, New South Wales Department of Community Services(1996) FLC 92-678, and also r 22.11(3) of the Family Law Rules 2004 (Cth)). We mention this matter only because it was a matter raised by
Ms Banks in her further material forwarded to the court after the hearing.
Consideration of the orders sought by Ms Sullivan
The first three orders sought in Ms Sullivan’s application in an appeal are as follows:
1. That time for compliance with orders (2) and (3) [being it can be assumed Orders 2 and 3 made by the Full Court on
28 August 2015] is urgently extended to permit the hearing of this stay application before compliance with the orders falls due.
2.That the extension of time for compliance with Orders (2) and (3) of 28 August 2013 [and again it can be assumed that year should be 2015] is made in chambers.
3.The Orders (2) and (3) of 28 August 2015 are stayed pending the hearing and determination of appeal EA51 of 2013.
It will thus be seen that those three orders are concerned with a stay of the operation of Order 2 of the orders of 28 August 2015, which required
Ms Sullivan to lodge security within 14 days of being served with a copy of
Ms Banks’ undertaking, and of Order 3 of those orders which provided that if the security was not lodged within the required time, the appeal against Loughnan J’s orders of 12 August would stand dismissed.
It emerges from Ms Sullivan’s affidavit in support of her application for a stay of the orders in question that she relies on the unreported decision of the
Full Court of this Court in Trahn & Long (No 2) [2008] FamCAFC 194 where the principles relevant to the grant of a stay of orders pending the determination of an appeal against those orders were set out. The full text of the relevant passage from that decision is as follows:
38. These principles, both in the general law and in respect of parenting proceedings, are well settled (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited (1986) 160 CLR 220 at 230; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685. Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Clemett and Clemett
(1981) FLC 91-013; JRN & KEN v IEG & BLG (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter included the following:· the onus to establish a proper basis for the stay is on the applicant for the stay however it is not necessary for the applicant to demonstrate “special” or “exceptional” circumstances;
· a person who has obtained a judgment is entitled to the benefit of that judgment;
· the person who has obtained a judgment is entitled to presume the judgment is correct;
· the mere filing of an appeal is insufficient to ground a stay;
· the bona fides of the applicant;
· a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;
· a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant the stay;
· some preliminary assessment of the strength of the proposed appeal - whether the appellant has an arguable case;
· the desirability of limiting the frequency of any change in a child’s living arrangements;
· the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time; and
· the best interests of the child the subject of the proceedings.
Given the provisions of Order 2, and particularly of Order 3 of the orders made on 28 August 2015, the seventh of the above mentioned principles, being the requirement for “a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted”, assumes special significance in this case, and indeed, in our view, must be determinative.
Put simply, if a stay of Orders 2 and 3 is not granted, there is a significant risk having regard in particular to the conclusions in the Full Court’s reasons for judgment of 28 August 2015 concerning Ms Sullivan’s financial position, that she could not meet the order for security and that therefore her appeal against Loughnan J’s order would stand dismissed. Such an outcome could well be said to render nugatory Ms Sullivan’s application for special leave to appeal to the High Court.
It must, however, be acknowledged that if the stay was not granted and the appeal against Loughnan J’s order was to stand dismissed, there might be an argument that because that appeal had not been dismissed on its merits, it could in some way be re-instated should Ms Sullivan’s appeal (should she be given special leave to institute it) be ultimately successful in the High Court. Such an outcome would be highly inconvenient for all concerned, and in particular would result in far greater inconvenience for Ms Banks than the inconvenience (being essentially only a delay in certainty of outcome) which will be caused to her if a stay of the orders is granted. In this particular context it is important to record that Ms Banks admitted at the hearing before us that she would not be inconvenienced by the grant of the stay.
The duration of the stay, which we would grant, would only be until the disposition by the High Court of the application for special leave to appeal filed 10 September 2015 (cf the order made by Gummow J in De Lewinski v Director General, New South Wales Department of Community Services). Should special leave to appeal be granted, any extension of the stay would be a matter for the High Court.
We consider it prudent, particularly in light of discussion with Ms Banks during the hearing before us, that we include in our proposed orders an order making clear how Orders 2 and 3 of the orders of 28 August 2015 will operate in the event the High Court refuses Ms Sullivan special leave to appeal.
We turn then to the other orders sought by Ms Sullivan in her application filed on 9 September 2015.
The fourth order sought by Ms Sullivan is in the following terms:
4.Order (1) of 28 August 2015 is modified to read that the undertaking by [Ms Banks] will be made pending order for injunctions being against her sought in appeal EA51 of 2013.
It emerged from our discussion with Ms Sullivan at the hearing before us that this was an order which she would seek from the High Court in the event that that Court was prepared to hear or grant her appeal. It is thus unnecessary that this Court consider the application for that order further.
The fifth order sought is as follows:
5.That Appeal EA51 of 2013 is listed to be heard on determination of my High Court Application seeking special leave to appeal the 22 May 2015 Supreme Court CCA orders (and if successful the appeal of those orders)
Appeal EA51 of 2013 is the appeal against Loughnan J’s order of
12 April 2013 in relation to which the security for costs orders have been made. The listing of the hearing date for that appeal, if indeed that appeal is to proceed, is not a matter that can be determined at this time given that its future is dependent on the application for special leave to appeal the security for costs orders. It also emerged from our discussions with Ms Sullivan that her application for special leave to appeal the decision of the New South Wales Court of Criminal Appeal was filed earlier than her application for special leave to appeal the security for costs orders of this Court, and thus is likely to be determined by the High Court earlier than the second mentioned application for special leave to appeal.
The sixth order sought by Ms Sullivan is that Ms Banks “pay my costs”.
We understand that the costs being referred to are the costs of this stay application.
Given that both parties are self-represented, it is unlikely that they would have incurred many costs which could be the subject of a costs order. But regardless of that consideration, we consider that there would be no justification in this case, to depart from the general rule that each party pay their own costs in proceedings under the Family Law Act 1975 (Cth) .
The final order sought by Ms Sullivan is:
7.That [Ms Banks] be restrained from filing any further applications that could serve to frustrate the hearing of the appeal EA51 of 2013.
A court will rarely restrain a person from filing further applications
(see Bennett v Bennett (2001) FLC 93-088), and we consider that there would be no justification for such an order in the circumstances of the present case.
Proposed orders:
Our orders therefore will be:
1. The operation of Orders 2 and 3 of the orders made by the Full Court on 28 August 2015 be stayed pending the disposition by the High Court of the application for special leave to appeal those orders filed 10 September 2015.
2. (a) Notwithstanding the provisions of Order 2 of the orders made by the Full Court on 28 August 2015, in the event that the application for special leave to appeal those orders is refused by the High Court, then the applicant-appellant, Ms Sullivan, will have fourteen days from the date of the decision of the High Court, to lodge with the Registry Manager of the Sydney Registry of the Family Court of Australia the sum of $12,000 to be held as security for any costs awarded to the second respondent in relation to Appeal EA 51 of 2013.
(b) In the event that the applicant-appellant fails to lodge the security provided for in Order 2(a) of these orders, then Appeal EA 51 of 2013 in so far as it is directed to, or affects, the second respondent to the appeal, shall stand dismissed.
3. The application in an appeal filed 9 September 2015 be otherwise dismissed.
4. There be no order for costs in relation to the application in an appeal filed 9 September 2015.
I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Thackray and Strickland JJ) delivered on 17 September 2015.
Associate:
Date:
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