Tate & Tate

[2003] FamCA 113

[2003] FamCA 113

FAMILY LAW ACT 1975

IN THE FULL COURT      
OF THE FAMILY COURT OF AUSTRALIA                 Appeal No SA 85 of 2002
AT MELBOURNE BY VIDEO LINK  File No AD 4316 of 1993

BETWEEN:

JOHN RICHARD DONALD TATE
Applicant Husband
- and -

MARIE THERESE TATE
Respondent Wife

REASONS FOR JUDGMENT

CORAM:  NICHOLSON CJ, KAY & MONTEITH JJ
DATE OF HEARING:                 20 February 2003
DATE OF JUDGMENT:             20 February 2003

APPEARANCES:  Mr Richards of Counsel, instructed by, Camatta Lempens Pty Ltd, 345 King William Street, Adelaide  SA  5000, appeared on behalf of the Applicant Husband.

Mr Birchall of Counsel, instructed by Diane Myers Pty Ltd, Barristers and Solicitors, 189 Greenhill Road, Parkside SA  5063, appeared on behalf of the Respondent Wife.

Appeal of Tate                   SA 85 of 2002
Date of Hearing                 20 February 2003
Date of Judgment             20 February 2003
Coram  Nicholson CJ, Kay and Monteith JJ

CATCHWORDS:     Practice and Procedure – Orders – Sentence of imprisonment imposed by trial Judge – Appeal against sentence dismissed by Full Court - Application for special leave to appeal filed - Application for stay – Principles governing discretion – Application for stay dismissed.

NICHOLSON CJ

1. This is an application for the further stay of a warrant of commitment issued in these proceedings by order of this Full Court on 13 February 2003.

1. When the matter came before me, sitting as a single judge on that day, I granted a stay in favour of the applicant for seven days to this day. The basis of the grant of the stay was that he was about to undergo medical treatment and I took the view that it was not unreasonable to grant a stay of seven days.

1. We now have a further application for a stay before us upon two grounds: one being that the applicant has made an application for special leave to appeal to the High Court of Australia; and secondly in the alternative, that he requires further medical treatment up to and including 24 February 2003.

1. The primary issue before us relates to the stay based upon the special leave application.  Broadly, the applicant says that if a stay is not granted then the reality is that he will have served the sentence of four months imposed by Murray J before the High Court can deal with his special leave application.  That is obviously a relevant matter and a matter that we are required to take into account in considering the issue.

1. However, the authorities - most of which are usefully collected in the decision of this court in Fauna Holdings Pty Ltd and McGillivray v Mitchell (2000) FLC 93-024 - lay down that the jurisdiction to exercise a stay following the imposition of a term of imprisonment is exercised most sparingly on the basis of the making of a special leave application to the High Court. The principles were set out by Brennan J (as he then was) in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd No. 1 (1986) 161 CLR 681.

1. His Honour said (at 685):

"In each case when the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of the stay will cause loss to the respondent; fourthly, where the balance of convenience lies." 

1. In principle, a stay of bail pending an appeal involving imprisonment is only granted in exceptional cases.  Those principles are set out in the cases collected in paragraph 19 of the Full Court's judgment in the Fauna Holdings case. 

1. Applying the principles suggested by Brennan J, the first matter to be considered is whether there is a substantial prospect that special leave to appeal would be granted.  As the Full Court said in the Fauna Holdings case, it is a somewhat difficult position for a court to make this assessment in relation to one of its own judgments.  However, the law clearly requires us to do so.

1. The grounds for the special leave application are three in number:

“2. The Court erred in ruling with respect to the conviction relating to the model car collection that:

2.1the trial judge had correctly drawn the inference of removal to Queensland of the whole of the collection (at [46]);

2.2that it was proved beyond reasonable doubt that the whole of the collection had been removed from the metropolitan area in breach of the order of the Family Court of 10 March 1999;

2.3in pleading guilty to the charge the applicant admitted removal of the whole of the collection to Queensland (at [69]);

2.4in failing to uphold the applicant’s submission that there were no adequate findings by the sentencing Judge as to underlying facts on which the sentence was based.

3.The Court erred in ruling with respect to the conviction relating to the order for discovery that:

3.1the seriousness of the conduct of the applicant in general, rather the precise findings relating to the particular documents not discovered in breach of court orders, was relevant and governed the appropriate sentence to be imposed (at [74]) and [76];

3.2in regarding the fact that other pending charges for contempt was irrelevant to whether a custodial sentence should be imposed (at [78]).

4.        In failing to find that the sentences either individually or accumulatively were manifestly excessive.”

1. The first set of grounds set out in ground 2 relates to what is asserted to be an error by this Court with respect to the conviction relating to the model car collection in relation to which the applicant was sentenced to one month's imprisonment, cumulative upon the other matter. 

1. I see no substance in the matters set out in ground 2. I think it important to comment that when we dealt with that matter in paragraph 69 of our judgment we said:

"We think it quite clear at the initial hearing before her Honour that the issue in relation to this count when read in context was that the whole of the model collection had been removed by the husband from the Adelaide metropolitan area.  In pleading guilty to the charge, we think the husband effectively admitted this." 

1. We then went on to say, and I lay particular stress on these matters:

"The husband did not appeal against her Honour's finding at the first hearing that the whole of the collection had been removed.  Counsel for the husband at the sentencing hearing advanced no evidence or argument to this effect.  If it was then open to him to allege a different version of the facts, no attempt was made to do so." 

1. In my view, even if the Court was wrong in its conclusion to the effect that the husband by his plea of guilty had admitted the offence and that on the evidence the conclusion reached by her Honour was open to her, the matters I have stressed would be sufficient to dispose of that particular ground.  I therefore consider that it has no substance.

1. Ground 3 relates to the seriousness of the conduct of the applicant.  I see no particular substance in this as a ground for seeking special leave to appeal and do not think that it is likely to be successful. Similarly, I do not lay weight upon the alternative argument relating to the other pending charges for contempt. 

1. As to ground 4, for the reasons that we gave in the course of our judgment, I again consider that there is little or no substance in this ground as the basis for a special leave application. 

1. In many ways the circumstances of this case are similar to that in the Fauna Holdings case to which I have referred, where we similarly considered that there was little chance of success in relation to the application.  In that case we expressed the view that, as to the issue of loss to the respondent, we thought  that the delay involved in pursuing an appeal to the decision of the High Court would cause her loss, not only in the expenditure of further legal costs in these proceedings, but in further delaying the trial of the matter on the merits. 

1. The second aspect of delay to the trial is not present here, but clearly the first one is and it seems to me that when one looks at the history of this case it is extremely troublesome, particularly in light of the husband's present bankruptcy and his failure to comply with orders made against him in the past. 

1. In the Fauna Holdings case we commented in relation to the balance of convenience, that the individual applicants, either themselves or through corporate bodies, had conducted what we thought amounted to a war of attrition, by failing to comply with the injunctions directed at them.  That case involved three appeals to the Full Court of this court.

1. As in Fauna Holdings, although the facts of course were different, the aspect of the war of attrition would have to be regarded as relevant to this case as well, which has also involved three appeals to the Full Court.  In all the circumstances therefore, I do not think that the balance of convenience favours the application at all.

1. It is of interest to examine the decision of Gray J in the Supreme Court of South Australia in R v Collins (2002) SASC 2 delivered on 18 January 2002. This was an application for bail pending appeal and the judgment usefully brings together some of the principles to be applied in cases of this sort. Importantly, Gray J pointed out that in the case before him the applicant no longer had any right of appeal. His application for leave was yet to be determined. His Honour said that the usual practice is to refuse bail pending the hearing of a special leave application when a person has been convicted, and the conviction has been confirmed on appeal. In exceptional circumstances, however, there may be a grant of bail.

1. His Honour then referred to statements by Mason J (as he then was) in Hayes v the Queen (1974) 48 ALJR 455 and Brennan J in R v Chamberlain [No. 1 ] (1983-1984) 153 CLR 514 at 519. The point that was made by Brennan J in that case is applicable here also because this is a case where an intermediate court of appeal - namely this one - has found neither an appellable error occasioning a substantial miscarriage of justice in the trial, nor an error of law affecting sentence. It seems to me that those principles are highly relevant to the present case.

1. Gray J also pointed out - and the Full Court made a similar distinction in the Fauna Holdings case –  that in United Mexican States v Cabal (2001) 179 ALR 520, the High Court (Gleeson CJ, McHugh and Gummow JJ) said:

"It is true that in Pelechowski v the Registrar, Court of Appeal, bail was granted to a person convicted of of contempt of court by the Court of Appeal, even though the prospects of succeeding in the application were not regarded as high. But that case had two special factors. First, that the whole or substantially most of the custodial sentence would have been served by the time the special leave application was determined.  Second, there had been no intermediate appellate review of the decision.  Thus, the case was not one where an appellate court had considered the case and found no error."

1. While it is true that the first of those distinctions with Pelechowski’s case is not present in this case, the second distinction very clearly is.  In all the circumstances therefore I consider that this is not an appropriate case for the grant of a stay upon the basis of the special leave application.  So far as the alternative application is concerned I would similarly dismiss it.  The applicant has had the opportunity of a stay of some seven days by reason of his medical condition. 

1. The only material that is placed before us is a report by Dr Bryant dated 14 February 2003, which states:

"This is to certify that I have performed the surgical procedure today on the above.  He will need regular review of the wound up to and including 24 February 2003, when I anticipate removing his sutures." 

1. The doctor does not descend to any detail as to what the surgical procedure is and in the circumstances it seems that the treatment that he proposes is simply supervisory and eventually involving the removal of sutures. 

1. I see no reason why these matters could not be properly dealt with in the relevant correctional establishment in which the applicant will be serving his sentence.  I therefore do not see any reason to grant a further stay on this ground.  I consider that the application should be dismissed. 

KAY J:  

1. I agree and have nothing to add.

MONTEITH J:  

1. I agree for the reasons advanced by the Chief Justice and have nothing further to add.

NICHOLSON CJ:

1. The order of the Court therefore will be that the application is dismissed.

RECORDED: NOT TRANSCRIBED

NICHOLSON CJ :

1. Because of the split nature of the Court due to the videolink arrangements this is somewhat difficult in terms of conferring, but Kay J and myself see no reason why orders for costs should not be made in favour of the wife in this case.

MONTEITH J:  

1. Neither do I.  I would be in favour of making an order for costs against the appellant.

NICHOLSON CJ:

1. I should perhaps indicate briefly that while the issue of impecuniosity has been raised by counsel for the appellant, it is clear that there are proceedings under way that bring into question that very issue and if there is any substance in those proceedings, it seems to me that it would be most unjust that the wife should not have her costs both in relation to the appeal and this application.

KAY J: 

1. I am of the view that even if those proceedings lead nowhere, whilst the relative financial position of the parties is one aspect to be taken into account, there are other more determinative features of section 117(2) that react on my mind, particularly the nature of the proceedings and the fact that both the appeal and the application have been wholly unsuccessful is such that irrespective of the financial means of the parties, I would order the husband pay the costs as agreed or taxed in default of agreement. 

I certify that the  preceding
 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.

Elizabeth Hore
Associate