VANCE & MEADOWS
[2012] FMCAfam 1069
•10 October 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VANCE & MEADOWS | [2012] FMCAfam 1069 |
| FAMILY LAW – Property – costs – security for costs – application for order that respondent provide security for costs – consideration of the conduct of the case by the substantive applicant – whether an order for security for costs would stifle the case – consideration of the strength of the substantive case. |
| Family Law Act 1975, ss.90SM, 117 Family Law Rules 2004, rr.19.05, 19.06 Federal Magistrates Court Rules 2001, rr.13.03C, 16.05, 21.1 |
| Lindon v Commonwealth (No.2) [1996] HCA 14; (1996) 136 ALR 251; 70 ALJR 541 Meadows & Vance [2011] FMCAfam 1163 |
| Applicant: | MR VANCE |
| Respondent: | MS MEADOWS |
| File Number: | SYC 1466 of 2011 |
| Judgment of: | Scarlett FM |
| Hearing date: | 13 August 2012 |
| Date of Last Submission: | 13 August 2012 |
| Delivered at: | Sydney |
| Delivered on: | 10 October 2012 |
REPRESENTATION
| Solicitor for the Applicant: | Mr Finlay |
| Solicitors for the Applicant: | Cleary Finlay Solicitors |
| Counsel for the Respondent: | The Respondent appeared in person |
| Solicitors for the Respondent: | No solicitor on the record |
ORDERS
The Application in a Case filed on 8 March 2012 is dismissed.
The Applicant and the Respondent are directed to attend a Conciliation Conference with a Registrar on a date to be fixed by the Court.
IT IS NOTED that publication of this judgment under the pseudonym Vance & Meadows is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 1466 of 2011
| MR VANCE |
Applicant
And
| MS MEADOWS |
Respondent
REASONS FOR JUDGMENT
Application
This is an Application by the Respondent to a property application that the substantive Applicant, the Respondent to this Application, provide security for costs in the sum of $10,000.00 and that the substantive application should be stayed pending the provision of that security. It is also sought that if the security is not provided within six months then the substantive application for a property order should be dismissed with costs.
The Respondent to this Application has filed a Response, seeking an order that the Application be dismissed with costs.
Grounds
The Applicant relies on his affidavits sworn on 5th March and 16th May 2012, and an affidavit of Mr S, sworn on 10th May 2012. The bases for his claim are:
a)the way that Ms Meadows has conducted the matter to date;
b)the poor prospects of success of her property application; and
c)his limited income and assets.
Ms Meadows relies on two affidavits, each sworn or affirmed on 27th March 2012 in support of her Response seeking that the application for security for costs should be dismissed with costs. The thrust of her affidavits goes to her claim that she has a property application that should be determined and that she has few funds.
The relevant Law
Mr Vance refers in his Application in a Case to Rules 19.05 and 19.06 of the Family Law Rules 2004. Whilst applications for security for costs in the Federal Magistrates Court are governed by Rule 21.01 of the Federal Magistrates Court Rules 2001, Rules 19.05 and 19.06 offer a helpful guide to determining applications of this type.
Subsection 117(2) of the Family Law Act 1975 empowers the Court, if of opinion that there are circumstances that justify it in doing so, to make such orders as to security for costs, whether by way of interlocutory orders or otherwise, as the Court considers just. In considering what order (if any) should be made, the Court shall have regard to the matters set out in subsection 117(2A).
Consideration
The progress of the property application has not been conducted with any great efficiency on the part of Ms Meadows. She was initially represented by a solicitor, who filed on her behalf a handwritten property application, a handwritten financial statement and a typed affidavit on 10th March 2011. The Application sought urgent orders.
Mr Vance, through his solicitor, filed a Response and supporting documents on 29th April 2011.
A solicitor, Ms Johnson, appeared for Ms Meadows on the first return date, 2nd May 2011. Mr Finlay, solicitor, appeared for Mr Vance. On that day Ms Meadows’ solicitor obtained leave to file an amended application and a further affidavit, and the application was adjourned to 6th July 2011 for mention.
Neither Ms Meadows nor her solicitor appeared on the next occasion. The Amended Application was never filed, nor was the further affidavit. On 6th July 2011 the proceedings were adjourned to 19th September 2011. Ms Meadows was directed to attend court on the next occasion and warned that if she did not then orders may be made in her absence.
Ms Meadows did not attend court on the next occasion. The property application was dismissed with costs under the provisions of Rule 13.03C (Meadows & Vance[1]).
[1] [2011] FMCAfam 1163
On 17th October 2011 Ms Vance filed the following documents:
a)a Notice of Appeal against the decision of 19th September 2011 dismissing her Application;
b)an Application to set aside the decision of 19th September 2011 under the provisions of Rule 16.05;
c)an Application for a Stay of the decision of 19th September 2011; and
d)two affidavits in support of her Appeal and her Application to set aside the decision.
In support of her Application to set aside the decision , Ms Vance deposed that her former solicitors were no longer acting for her and that her ability to attend Court to prosecute her case had been hindered by a number of factors; These were:
a)her need to undergo surgery;
b)her need to change her address on several occasions; and
c)the serious injuries suffered by her daughter in a motor vehicle accident, requiring her to assist her daughter whilst she was convalescing.
Ms Vance’s former solicitors, Leigh Johnson & Co, filed a Notice of Intention to Withdraw as Lawyer on 11th November 2011 and a Notice of Withdrawal on 21st November.
On 21st November 2011 the Court set aside the Orders of 19th September 2011. The Application was adjourned.
The Application for Security for Costs was filed on 8th March 2012.
Neither party has other than a modest income and a modest amount of assets. From her material, Ms Meadows appears to be less well off than Mr Vance, but his evidence shows that he has a modest income and the necessity to defend these proceedings has caused him a substantial amount of financial strain.
The property claim by Ms Meadows appears to be somewhat optimistic, at best. In her initiating Application she seeks an Order that Mr Vance transfer to her half of his interest in a property at [omitted], New South Wales, his current residence. The basis for this claim is set out in her affidavit of 10th March 2011:
We lived together in a de facto relationship at the Home Unit for approximately 2 years 3 months ½ years from or about early Mar 2006 to or about early Jun 2008. The respondent paid me no rent so this arrangement allowed him to save money after paying out his wife and get back on his feet financially as he was able to rent out the Property for this period.[2]
[2] Affidavit of Ms Meadows sworn 10 March 2011 at paragraph [19]
The property has a value of between $450,000.00 and $500,000.00 and is subject to a mortgage of $260,000.00, according to Ms Meadows’ affidavit.
On a conservative basis, there appears to be an equity in the property of about $190,000.00, of which Ms Meadows seeks some $95,000.00, based on her claim of a de facto relationship of two and a quarter years. Taking her claim at its highest and disregarding any considerations in favour of Mr Vance, the case being put forward by Ms Vance seems to be somewhat optimistic and not necessarily a case that could be confidently expected to succeed.
The orders sought by Mr Vance would require:
a)that Ms Meadows should provide security for costs in the sum of $10,000.00;
b)that her property application should be stayed until she provides this security; and
c)if she does not provide security for costs within six months her substantive application would be dismissed with costs fixed in the sum of $5,350.00.
Taking into account the matters required by s.117(2A) of the Act, the financial circumstances of both parties are extremely modest and
Ms Meadows has not been shown to have access to the amount of $10,000.00 sought, or a lesser sum. Neither party is in receipt of a grant of legal aid.
The conduct of the proceedings on behalf of Ms Meadows has been highly unsatisfactory. Her first solicitor prepared and filed her originating process and appeared on the first return date. She appears top have done nothing from that date until a Notice of Withdrawal was filed on 21st November 2011. Ms Meadows has been assisted in preparing her affidavits in this matter by a Mr Paul Thorsby, solicitor, who has not gone onto the Court record. Otherwise, Ms Meadows is continuing these proceedings as a self litigant. She has provided evidence of difficulties in her personal life that have made it hard for her to conduct her application with any efficiency.
If the Court were to make the order for security for costs sought, in my view it would stifle the case, as Subrule 19.05(2) of the Family Law Rules states. Whilst Rule 19.05 does not specifically apply to the Federal Magistrates Court, it offers a useful guide to the way stay applications should be approached.
Making the orders sought by Mr Vance would effectively prevent
Ms Meadows from bringing her case at all, amounting almost to summary dismissal. Whilst the prospects of success of the application by Ms Meadows are not high:
An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court…[3]
[3] Lindon v Commonwealth (No.2) [1996] HCA 14; (1996) 136 ALR 251; 70 ALJR 541 per Kirby J at [14]
In all the circumstances, I am not satisfied that an order should be made that Ms Meadows should provide security for costs in the sum of $10,000.00 or a lesser amount. She does not have the financial capacity to meet an order for security for costs, so such an order would effectively stifle the case. It is preferable for a case to be either determined on its merits or settled on just and equitable terms.
The Application for security for costs will be dismissed. The parties will be directed to attend a conciliation conference before a Registrar of the Court on a date to be fixed. However, Ms Meadows would be well advised to take all necessary steps to bring this case to finality without further delay and to obtain further legal advice about the prospects of success of her claim.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Date: 3 October 2012
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