Thomas & Anor & Woollard
[2005] FMCAfam 316
•3 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| THOMAS & ANOR & WOOLLARD | [2005] FMCAfam 316 |
| FAMILY LAW – PRACTICE & PROCEDURE – Stay of proceedings – principles to be applied in family law matters – property proceedings – stay pending appeal. |
Wilson v Church (No.2) (1879) 12 ChD 454
Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; 69 ALR 265.
Carlin & Carlin (1977) 3 Fam LN 52; FLC 90-320
Kelly & Kelly (1980) Fam LR 741; (1981) FLC 91-001
Molier v Van Wyk (No.2) (1981) 7 Fam LR 474; FLC 91-001
| First Applicant: | CLIVE JOHN THOMAS |
| Second Applicant: | KAREN DONNA THOMAS |
| Respondent: | DEBORAH ANNE WOOLLARD |
| File No: | PAM 4580 of 2002 |
| Delivered on: | 3 June 2005 |
| Delivered at: | Sydney |
| Hearing dates: | 25 May & 3 June 2005 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Roberts |
| Solicitors for the Applicant: | David Archer & Associates |
| Solicitor for the Respondent: | Mr Morley |
| Solicitors for the Respondent: | Lamrocks |
ORDERS
That Orders 1, 2, 3, 4, 5, 6, 7, 8 and 9 made on 30 March 2005 are stayed until the hearing of Appeal EA 48 of 2005 upon the following conditions:
(a)that the Applicants are restrained from doing any act to remove the Respondent from occupation of the real property at 26 Willow Tree Avenue Emu Plains in the State of New South Wales;
(b)that the Solicitors for the Respondent release to the Respondent for her use and benefit the sum of $20,000 out of the proceeds of the sum of $42,211.55 currently held on trust for the parties and the husband in their trust account within seven (7) days;
(c)that the Applicants give the usual undertaking as to damages in writing by 4:00pm on 7 June 2005.
That the Applicant is to pay the Respondent’s costs of today’s proceeding fixed in the sum of $570.00.
The matter is removed from the list of cases awaiting finalisation.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
PAM 4580 of 2002
| CLIVE JOHN THOMAS |
First Applicant
And
| KAREN DONNA THOMAS |
Second Applicant
And
| DEBORAH ANNE WOOLLARD |
Respondent
REASONS FOR JUDGMENT
The application before the Court is an application for a stay of orders which were made after a defended hearing in this Court that extended over a number of days. The decision was handed down on 30 March 2005 and I made a variety of orders on that day.
The proceedings related to an application by the wife who is the Respondent to this appeal to set aside a disposition by the husband, who was the First Respondent in the original proceedings, to the Second and Third Respondents who are the Applicants in these proceedings, of the former matrimonial home at 26 Willow Tree Avenue, Emu Plains. On 30 March I granted that application setting aside the disposition. I ordered that any consideration should be repaid. I made other orders relating to a transfer by the husband and I made orders for listing of the property at Emu Plains for sale. I then made a number of consequential orders relating to sale together with some orders relating to a transfer by the husband to the wife of a motor vehicle; a declaration that the husband was the sole owner of a business known as Cash for Cars and declarations that pursuant to s.78 of the Family Law Act the husband and wife were the sole owners of a variety of items of personal property, financial assets and financial resources including superannuation funds in their name or possession. I made an order under s.106A empowering the Registrar or any Deputy Registrar of this Court to execute any document in the name of a party who was refused or neglected or otherwise failed to execute it. I also made an order for costs in favour of the wife against the husband only. I did not make any costs order between the wife and the Second and Third Respondents who are the Respondent and Applicants in these proceedings respectively.
The Second and Third Respondents have lodged an appeal against that decision. That appeal was lodged on 27th April 2005 and an application for a stay was lodged that same day. Mr Morley for the Respondent wife has pointed out that those documents were lodged on the last day available to the Applicants.
When the stay application came on for hearing before me on 25th May the Applicants, who by that stage were legally represented by solicitor and counsel, filed in Court an amended application for a stay. They named both the Respondent wife and the Respondent husband, who was not a party to the appeal, as Respondents, although it appears to me on the material currently available that the application for a stay hardly applies to the Respondent husband at all.
The amended application for a stay now seeks an order that Orders 1 to 16 inclusive made in this Court on 30 March 2005 should be stayed. The wife, the Respondent to these proceedings, opposes this application both in its original form and its amended form. The wife's solicitor, Mr Morley, informs the Court that his client strenuously opposes the grant of a stay and suggests that if the Court grants a stay contrary to her application, such a stay should only be granted on terms. The wife's solicitor suggested that one such order should be the release to the wife from moneys held in trust for the parties in the wife's solicitor's trust account the sum of $42,211.55.
When the matter was before me on 25th May, counsel for the Applicants originally indicated that their clients would consent to such an order, but today they have informed the Court that that consent is withdrawn. The reason given that it is their belief that upon a successful appeal that costs in particular will be significant and it would not be appropriate for those funds to be released to the wife.
The matter was not able to be concluded on the last occasion. Mr Morley for the Respondent submitted that there was no evidence as to the status of the appeal and if his reading of the rules was correct the appeal had only one hour and nine minutes to go before it would be deemed to have been abandoned by reason of the Appellants' failure to file certain documentation required by the rules. I granted an adjournment and the parties left to make inquiries at the Appeal Registry.
I now have before me a letter dated 30th May 2005 addressed to the solicitors for the Applicants and the solicitors for the Respondent. That letter is under the hand of the Regional Appeals Registrar, Eastern Region. The letter makes it quite clear that the appeal is still on foot. It has been listed for a procedural hearing before Coleman J at the Parramatta registry at 10 am on 22nd July 2005. At that stage, amongst other things, his Honour would decide whether the appeal should be heard by the Full Court consisting of three Justices of appeal or whether it would be appropriate the appeal to be heard by a single Judge on a delegation. Mr Roberts put to the Court that in his understanding most matters which were appealed from the Federal Magistrates Court to the Full Court of the Family Court were dealt with by a single Judge. It is my understanding that that is correct.
I am referred by the applicants to a very old decision of Wilson v Church (No.2) (1879) ChD 454, a matter relating to a stay of proceedings pending an appeal to the House of the Lords. In Wilson v Church (No.2) it was held that where an unsuccessful party is exercising an unrestricted right to appeal it is the duty of the Court in ordinary cases to make such order for stay in proceedings under the judgment appealed from as will prevent the appeal if successful from being nugatory, but the Court will not interfere if the appeal appears not to be bona fide or there are other sufficient exceptional circumstances. When a Court makes an order to stay proceedings pending an appeal it will put the Appellants on terms to speed the appeal, and it will not interfere with the execution of the order of the Court below respecting costs except to put the solicitor who is to receive the costs upon an undertaking to refund them if required to do so.
I am also referred to the decision of Brennan J in the High Court of Australia in Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; 69 ALR 265. In that case, which dealt with an application for a stay pending the outcome of an application for special leave to appeal to the High Court, the Court said at 267:
In exercising the extraordinary jurisdiction to stay the following factors are material to the exercise of this Court's discretion. 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 a stay will cause loss to the respondent. And, fourthly, where the balance of convenience lies.
As I understand the law a stay should not be ordered as a matter of right or as a matter of course. The Applicant for an order must establish a ground. An appeal does not operate as a stay of proceedings nor does it invalidate any intermediate act or proceedings. The Judge or Federal Magistrate who made the decree appealed from if reasonably available or another Judge or Federal Magistrate may order a stay, but it is discretionary. The general principles that should be considered in respect of an appeal under the Family Law Act but not being an appeal in children's cases, are these:
a)Whether refusing a stay will render a successful appeal nugatory or will make it impossible or impractical to restore the position;
b)Any hardship that would be suffered by the applicant and the respondent as a result of granting or refusing a stay;
c)The merits of the appeal;
d)Whether there has been a delay in applying for the stay;
e)The bona fides of the applicant;
f)The time it is expected for the appeal to be heard.
The authorities for the above propositions are Carlin & Carlin (1977)
3 FLN 52, FLC 90-320; Kelly & Kelly (1980) Fam LR 741; (1981) FLC 91-001; and Molier v Van Wyk (No. 2) (1981) 7 Fam LR 474; FLC 91-001. Bearing these considerations in mind I note that this matter differs from the fact situation in both Wilson v Church (No.2) and Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd, in that the stay is being sought from the Court which originally made the order. In my view, that is the appropriate first step. The first Court that one should ask to stay an order is the Court that made it.
I look at whether refusing a stay will render a successful appeal nugatory, meaning whether refusing a stay will mean that there is nothing left to appeal about, or whether refusing a stay will make it impossible or impractical to restore the position. In my view, it is a strong argument in favour of a stay that refusing a stay would render the appeal of little or no value to the Appellants. Whilst a successful party should normally retain the fruits of the litigation the Court should be mindful of the fact that the fruits of an appeal are not lost to a successful appellant. In my view, the Applicants who are the Appellants would suffer hardship if I were to refuse a stay. If I grant the stay some hardship would be suffered by the Respondent. She is currently living in the house and she is not able to proceed with dealing with the case where she was successful. I am told that moneys have not been paid and that there would be some danger that the mortgagee would seek to exercise a power of sale. At this stage the Respondent to this application has not received any money and in my view one way of alleviating a hardship to her if I were to grant a stay would be to release some or all of the proceeds of the sum of $42,211.55 currently held on trust for the parties in the wife's solicitor's trust account. I am aware of the fact that the Applicants no longer consent to that amount being released.
I look also at the merits of the appeal. The solicitor for the Respondent says that there is a paucity of information about the grounds for the appeal which are being sought which makes it almost impossible to assess whether an appeal would be successful. Not surprisingly the solicitor for the Respondent is of a view that the appeal is unlikely to succeed, at least to any great extent, whereas counsel for the Applicants takes a far more optimistic view.
I am not of a view that I could form any view that an appeal against this decision would be unlikely to succeed. It may well succeed either wholly or in part. Those matters are purely the realm of the Court that hears the appeal. It does not appear to me, however, that the appeal is frivolous or vexatious or entirely lacking in merit. I look at whether there has been a delay in applying for the stay and Mr Morley has pointed out that both the appeal and the application for stay were lodged on the very last day. Certainly the appeal was lodged within time and there was little point in applying for the stay before that time because unless there is an appeal lodged the Court would not grant a stay. It is my understanding of the rules that an applicant for a stay would not have grounds for a stay until an appeal had been lodged. Whilst both the application for the stay and the appeal have been lodged on the last day, at least they have been lodged within time.
I must also consider the bona fides of the Applicants. In my view the Applicants have lodged an appeal not for any frivolous or vexatious purpose, but because they consider that the case in this Court was wrongly decided and that they believe on legal advice that they have a reasonable chance of success. Whether that chance of success turns into success is a matter for another Court on another day, but in my view the application for a stay, at least in respect of certain orders, is bona fide and the applicants themselves have lodged a bona fide appeal.
The other matter that is relevant is the time it is expected for the appeal to be heard. I now have information which I did not have on the last occasion from the Appeals Registrar of the Sydney region. That letter points out that the appeal is listed for a procedural hearing on 22nd July. If it is to be heard by the Full Court rather than a single Judge the letter advises that it is not likely to be heard before 22nd August this year and possibly not until the week commencing 5th September. That is not to my mind an inordinately long time and it may well be that if the appeal is heard by a single Judge it can be head before 22nd August. That would be an even shorter time.
For all of these reasons I am of the view that a stay must be granted. If a stay is not granted the appeal would be almost worthless. At the same time it seems to me that the application for the stay, or at least the amended application, is sought in terms that are too wide. As I said, I must take into account the material before me and the state of the proceedings as they are now, not as to what the parties say they are going to be, and not as to whether an application was to be lodged with the Full Court. Unless those matters are matters to be dealt with by consent and quite clearly they are not, then the only material that I can rely is the material about the state of the proceedings as they stand at this stage.
The application for a stay seeks that all of the orders made on 30th March should be stayed. The application seeks and I quote:
Orders 1 to 16 inclusive made in this Honourable Court on 30 March 2005 be stayed.
What I now do is look at the notice of appeal as it stands and look at the orders which are the subject of the appeal. That notice of appeal seeks that Orders 1, 2, 3, 4, 5, 6, 7, 8, 9, 14 and 15 made by the Court should be set aside. As there is no appeal against Orders 10, 11, 12, 13 and 16 it is my belief that I should not make an order staying them. In any event Order 16 did nothing more than remove the application from the list of cases awaiting finalisation in the Federal Magistrates Court.
I look now at the orders that are the subject of the appeal. Quite clearly Orders 1, 2, 3, 4, 5, 6, 7, 8 and 9 all relate to the subject of the appeal before the Full Court. Orders 10, 11, 12 and 13 relate only to proceedings between the respondent and the husband who was the first Respondent in the proceedings of this Court. They are not orders that are relevant to the applicants before me today who are the Second and Third Respondents. They relate, amongst other things, to the parties' Holden Commodore station wagon, the husband’s business of Cash for Cars and personal property in the names of or the hands of the husband and the wife. To my mind the Applicants who are the Second and Third Respondent have no locus standi to seek a stay of orders that do not concern them.
Order 14 is a machinery order under s.106A of the Family Law Act appointing the Registrar or a Deputy Registrar to execute any deed, document or instrument in the name of a party who was refused, neglected or otherwise failed to do so. It is true that it is relevant to the orders that are the subject of the appeal. It is also, however, relevant to Order 10 between the Respondent and her former husband, and as such I am not of the view that it is an appropriate subject of a stay. Order 15 states:
That the First Respondent husband is to pay the Applicants' costs of these proceedings fixed in the sum of $20,505.00.
I do not propose to grant that order for two reasons. For a start, even though the Applicants have appealed against that order it is an order that does not affect them in the slightest. It was not an order made against them and in my view they have no locus standi to appeal against an order made between two other parties. It is not an order either in their favour or an order against them. Secondly, I refer to the decision of Wilson v Church (No.2) referred to me by counsel for the Applicants. The Court made it clear that when the Court makes an order to stay proceedings pending an appeal it will put the Appellants on terms to speed the appeal and it will not interfere with the execution of the order of the Court below respecting costs except to put the solicitor who was to receive the costs upon an undertaking to refund them if required to do so.
To my mind the likelihood of the costs order being overturned by the Full Court on the basis of the notice of appeal as it stands is very low, and for the reasons that I have given as such I consider it inappropriate to make that order.
In my view this is a matter that should have been able to be completed on the last occasion and unfortunately the Applicants who were the Appellants were not in a position to provide to the Court the information which was necessary. Had they been able to provide the information, certainly in the form of a letter from the registrar that I have today, then the matter would have been heard in full on the last occasion and indeed I would have made the stay order then that I have made today. I am mindful of the fact that we have come back here for, certainly two hours, and it is that matter that I think should be the subject of a costs order in favour of the respondent.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate: V Lee
Date: 17 June 2005
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