Voth and Voth

[2010] FamCAFC 4

FAMILY COURT OF AUSTRALIA

VOTH & VOTH [2010] FamCAFC 4

FAMILY LAW - APPEAL – PRACTICE AND PROCEDURE – Application for extension of time to file Notice of Appeal – Applicant sought to appeal interim property orders – Certain orders now sought to be appealed have been carried out – Applicant made a decision to not appeal the interim orders – Granting an extension to appeal would be a miscarriage of justice – Application dismissed
FAMILY LAW - SECURITY FOR COSTS – Respondent makes an application for security for costs in the appeal already listed for hearing – Prospects of success are not compelling – Appellant submits has he no means to meet security order – Balancing of factors requires an order for security – Security to be paid within 14 days of order otherwise appeal deemed to be dismissed

Adult Guardian & Mother’s Parents & B & Child Representative (2002) FLC 93-116
Jones & Jones (2001) FLC 93-080

APPLICANT: Mr VOTH

RESPONDENT: Ms VOTH

APPEAL NUMBER:	NA	74	of	2009
NA	84	of	2009

FILE NUMBER: BRC 2392 of 2008

DATE DELIVERED: 13 January 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Warnick J

HEARING DATE: 13 January 2010

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 3 September 2009

LOWER COURT MNC: [2009] FMCAfam 919

REPRESENTATION

APPLICANT: Applicant appeared in person

COUNSEL FOR THE RESPONDENT: Mr Burridge

SOLICITOR FOR THE RESPONDENT: Oric Legal

Orders

1. That the application in an appeal filed 27 November 2009 be dismissed.

2. That the husband pay the wife’s costs of and incidental to the application in an appeal filed 27 November 2009 as agreed and in default of agreement as assessed.

3. That the husband pay by way of security for costs in appeal NA74 of 2009 the sum of $10,000 to the trust account of the wife’s solicitor Oric Legal 151 Brisbane Road Mooloolaba 4557.

4. That until such security for costs is lodged, no further step be taken to advance appeal NA74 of 2009 on the list of cases pending and if such security is not lodged within fourteen (14) days of the date of these orders the said appeal be deemed to be dismissed.

5. That the wife’s costs of and incidental to the security for costs application be reserved.

IT IS NOTED that publication of this judgment under the pseudonym Voth and Voth is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE

APPEAL NUMBER: NA 74 of 2009

NA 84 of 2009

FILE NUMBER: BRC2392 of 2008

Mr VOTH

Applicant

And

Ms VOTH

Respondent

Ex TEMPORE

REASONS FOR JUDGMENT

1. In 2008 there were pending property proceedings between Mr and Ms Voth.  On 25 July 2008, Spelleken FM made what are, in effect, interim or interlocutory orders in connection with the property proceedings.  The orders provided for the sale of the former matrimonial home of the parties.  One of the orders, 5(d), provided that the husband pay one half of all sale, marketing and auction expenses as requested by the wife at the time the request is made.  I simply remark that, on its face, that is a fairly common order and not, on its face, improper or unfair. 

2. Order 8 was not an order related to the sale of a property, but discharged an order by a registrar and made an order against the husband for the costs thrown away by the husband’s failure to attend a conciliation conference on a nominated date, and the costs of and incidental to the application in the case filed 18 June, and of another application, on an indemnity basis.  Order 10 was a provision that the husband, upon receipt of an affidavit relating to those costs, file an affidavit setting out any dispute or issue. 

3. The application with which I am concerned immediately is that of the husband for an extension of time within which to appeal all of the orders made on 25 July 2008.  The husband has filed an affidavit in support of his application for an extension of time.  In that affidavit, he says that he had no notice of the proceedings of 18 June 2008, which is a date of one of the applications filed by the wife, and in respect of which indemnity costs were to be paid by the husband, and of 25 July 2008, when the orders I have outlined were made. 

4. He then describes that upon learning the content of the 25 July 2008 orders, he instructed solicitors to file an application to have some of the orders discharged and new orders made.  He deposed:

   I chose to make the application as I did as against appeal the particular decisions and orders of Spelleken FM that I was concerned about, because I felt at the time that it was the most cost-effective way to bring a resolution to the litigation, both in the interim proceedings and also in the substantive matter.

   In short, he made a deliberate choice not to appeal and that, in my view, is a reasonably telling matter in the consideration of whether or not he will now get an extension of time 17 months after the event, to appeal.

5. His application was heard in October 2008 and orders made in respect of it on 18 November 2008.  The husband describes himself as being partially successful, in the sense that the federal magistrate suspended the orders relating to the costs orders.  The order was that the operation of orders 5(d), 8 and 10 of the orders made by the court on 27 July 2008, the effect of which was described earlier, would be suspended.

6. The husband complains about the arrangements made for hearings and, in particular, for the trial in mid-2008 and the change in arrangements.  As I have indicated, he complains that he was absent and unaware of the particular dates that I have mentioned, and complains about the order against him for sale as being, in effect, a gross unfairness.  These, of course, were all matters that might have been raised on an appeal, which the husband chose not to make. 

7. In support of the application for extension of time before me, the husband has described a great many complaints and factual circumstances, as he would assert them, related not only to the extension of time, but to what might have been or might not have been a fair division of property between he and the wife.  I make two observations.  One is that many of his submissions to me do not relate to the 25 July 2008 orders or any proposed ground of appeal against those orders, and there has been a trial of the section 79 proceedings between husband and wife, and a decision which has been appealed, and the appeal is to be heard in a few weeks time.  Thus, a great many of the submissions made to me do not bear upon the extension of time application. 

8. Importantly, the question of the suspended orders for costs has been litigated before Coates FM, who heard the property trial, and together with the question of the costs of that trial, remains under deliberation by him.  Thus, insofar as the husband wishes to challenge the costs orders made on 25 July 2008 but suspended on 18 November 2008, he will not be disadvantaged, in my view, if refused the capacity to now appeal the 25 July orders, because their impact in financial terms is under consideration and will no doubt be determined by Coates FM. 

9. As to the balance of the orders which dealt with the sale of the house;  the house has been sold.  It was sold about 5 months after the orders were made.  There has been a property trial.  Any matters related to the preparation of the house for sale, the loss of rental while the property was being prepared for sale and any other matter bearing upon the financial consequences arising from the order for sale either have been aired, or at least could have been aired, in the property proceedings.  In my view, it would be a miscarriage of justice to now grant leave to challenge the orders of 25 July 2008, insofar as they related to the sale of the former matrimonial home. 

10. Whatever merit there may be in various complaints about court process and about the wife’s conduct, the husband is mistaken in thinking that there is a remedy in appealing the orders of 25 July 2008.  I have already referred to the deliberate choice made in relation to the course taken in respect of the 25 July 2008 orders.  The husband further says, in relation to the orders of 18 November 2008, that, notwithstanding that he was only partially successful, he did not appeal that decision and the related orders by her Honour, to save costs and further litigation, in the expectation that the final hearing of the substantive matter would generally resolve the matters related to the interim hearings in any case.  He concluded by saying:

    That expectation was not realised. 

11. His observations, as perhaps are clear from what I have just said, are premature.  The opportunity to air any matters arising out of the sale, as I have said, was available in the final hearing of property matters.  The opportunity of debating any matters relating to the costs orders currently suspended has been availed of and the outcome is pending.  There is then, in my conclusion, no reason for an extension of time to appeal the 25 July 2008 orders and I dismiss the application filed 27 November 2009.

RECORDED:  NOT TRANSCRIBED

1. I have before me an application for security for costs in relation to a pending appeal.  I bear in mind the principles discussed and the guidelines discussed in cases such as Jones & Jones (2001) FLC 93-080 and Adult Guardian and Mother’s parents and B and Child’s Representative (2002) FLC 93-116. I address, in particular, the means of the husband, the appellant, to satisfy costs. He submits that he has no means. The consequence if he has no means – and certainly, which he argues – is that that would stifle his appeal. There is no evidence before me of the use that the husband has made of moneys payable to him, or property received by him pursuant to orders that are appealed.

2. In her affidavit material in support of the application for security for costs, the wife addresses the question of the husband’s financial means.  Ms Mumford, the wife’s solicitor, deposes to discussions that she had with the husband on 6 January 2010.  I make no finding that the husband has any particular means, but do not make a finding either that he is utterly without means.  However, even if I was satisfied that he has no means to satisfy costs, I would order that he provide some security, because the prospect of the stifling of his appeal is less of an evil, although it may be an evil, than exposing the wife to resistance to an appeal with no prospect of enforcing any order for costs that she might obtain, if the appeal fails. 

3. That observation, of course, brings into focus the question of the prospects of success of the appeal so far as they can be ascertained.  It is not particularly easy to address this question for the husband, I think, has difficulty articulating the detail of his complaints.  If there are prospects, then I suspect they would lie in the treatment of questions of add backs to the property pool and, perhaps lesser, but not non‑existent, in the question of the ultimate justice and equity of the orders, in particular, taking into account what might be called section 75(2) factors.  The best I think I can do in the circumstances in this area is to say that the prospects certainly do not appear compelling.  I am, therefore, persuaded that security ought be ordered.

4. I note the deposition as to the anticipated costs, and the assessment or estimate of costs for work so far done in relation to the appeal.  Recognising that part of it is related to the security for costs application itself rather than the appeal proper, I nonetheless do not consider that I am in a good position to comment on the quantum of costs but, even accepting that they are likely to be reasonably and properly incurred of the order claimed, I would not be inclined to order security in anything like that amount, in recognition of minimising the prospect of stifling the husband’s appeal. 

5. In assessing a figure, given what the husband says of his financial circumstances, I must be fairly arbitrary.  One could pick any amount, I would have thought, between five and twenty thousand dollars and the arguments in support of the figure, in one instance, would be no better than those in support of it in any other instance, except insofar as, obviously, the less the better, the less the impact on the husband’s prospect of raising it and pursuing the appeal.  In the end, I have come to the conclusion that the amount should be $10,000.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Warnick

Associate: 

Date:  27 January 2010