Sullivan and Tyler & Anor - [2015] FamCAFC 167

FAMILY COURT OF AUSTRALIA

SULLIVAN & TYLER AND ANOR

[2015] FamCAFC 167

FAMILY LAW – APPEAL – APPLICATION FOR SECURITY FOR COSTS – where the second respondent to an appeal seeks that the appellant lodge security for the costs of the appeal – where the appellant admits she is impecunious – where the second respondent is prepared to give an undertaking regarding the subject matter of the appeal – where such undertaking would render the appeal futile – appellant required to lodge security on the filing of the undertaking by the second respondent – appeal in so far as it affects second respondent to be dismissed if security not lodged.

Family Law Act 1975 (Cth)

Bartsch & Redman (2014) FLC 93-584
Halsbury & Hasbury [2008] FamCAFC 170
Sawer & Sawer [2007] FamCA 140
Searle Holdings Pty. Limited & Pencious and Anor (Security for Costs) (No. 2) [2014] FamCAFC 184
Xuarez & Vitela [2012] FamCA 574

APPELLANT:

Ms Sullivan

FIRST RESPONDENT:

Mr Tyler

SECOND RESPONDENT:

Ms Banks

FILE NUMBER:

SYC

889

2008

APPEAL NUMBER:

2013

DATE DELIVERED:

28 August 2015

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Bryant CJ, Finn and Strickland JJ

HEARING DATE:

5 February 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:

In person

Orders

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.
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.
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.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sullivan & Tyler and Anor 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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sullivan and Tyler & Anor

Details

AGLC: Sullivan and Tyler & Anor [2015] FamCAFC 167
Case: [2015] FamCAFC 167
Decision Date: 28 August 2015

CaseChat Overview and Summary

The case of Sullivan and Tyler & Anor involved the appellant, Sullivan, appealing a decision of the Family Court of Australia. The second respondent, Tyler, sought that Sullivan lodge security for the costs of the appeal, given that Sullivan admitted to being impecunious. Tyler was prepared to provide an undertaking regarding the subject matter of the appeal, which would render the appeal futile if accepted. Consequently, Sullivan was required to lodge security on the filing of the undertaking by Tyler. If Sullivan did not lodge the security, the appeal in so far as it affected Tyler would be dismissed.

The primary legal issue before the court was whether Sullivan should be required to lodge security for the costs of the appeal, given that an undertaking by Tyler would render the appeal futile. The court considered the precedent in relation to security for costs in family law appeals and the principle that the granting of security should be based on the ability of the party to pay the costs. The court found that the undertaking by Tyler would render the appeal futile, and therefore, Sullivan should be required to lodge security. The court also noted that the amount of security should be sufficient to cover the potential costs of the appeal, which in this case was set at $12,000.

In reaching its decision, the court considered the relevant legal principles and precedents. The court found that the precedent in relation to security for costs in family law appeals supported the requirement for Sullivan to lodge security. The court also noted that the principle that the granting of security should be based on the ability of the party to pay the costs was not in issue, as Sullivan had admitted to being impecunious. The court further found that the undertaking by Tyler would render the appeal futile, and therefore, the requirement for Sullivan to lodge security was appropriate. The court also considered the amount of security required and found that $12,000 was sufficient to cover the potential costs of the appeal.

In conclusion, the court required Sullivan to lodge security of $12,000 within 14 days of the date of the orders. If Sullivan failed to lodge the security, the appeal in so far as it affected Tyler would be dismissed. The court also required Tyler to file an undertaking within 14 days of the date of the orders, and to serve copies of that undertaking on Sullivan and the solicitor for the first respondent. The court's decision was based on the legal principles and precedents relating to security for costs in family law appeals, and the principle that the granting of security should be based on the ability of the party to pay the costs.

Orders

Orders of the court

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.

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.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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