Wilmer and Golding
[2017] FamCAFC 203
•3 October 2017
FAMILY COURT OF AUSTRALIA
| WILMER & GOLDING | [2017] FamCAFC 203 |
| FAMILY LAW – APPEAL – EXPEDITION – Where the wife seeks to expedite the hearing of the appeal in relation to the refusal by the primary judge to grant a stay – Where the wife should have sought to expedite the hearing of the appeal against the dismissal of her restraint application – Where the wife makes an oral application to expedite that appeal – Where if the appeal is not expedited and heard and determined before the hearing of the listed trial it will be rendered nugatory – Hearing of the appeal against dismissal of the restraint application expedited. |
FAMILY LAW – APPEAL – COSTS – Where the husband seeks his costs – Where the application is opposed – Where there are circumstances which justify an order for costs – Costs ordered as sought.
| Family Law Act 1975 (Cth) s 94(2D)(j) Family Law Rules 2004 (Cth) r 12.10A |
| APPELLANT: | Ms Wilmer |
| RESPONDENT: | Mr Golding |
| FILE NUMBER: | MLC | 11080 | of | 2015 |
| APPEAL NUMBERS: | SOA | 57 | of | 2017 |
| SOA | 66 | of | 2017 |
| DATE DELIVERED: | 3 October 2017 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 15 September 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATES: | 1 August 2017 16 August 2017 |
| LOWER COURT MNC: | [2017] FCCA 1856 [2017] FCCA 2008 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Matta |
| SOLICITOR FOR THE APPELLANT: | Mitchell Family Law Pty Ltd |
| COUNSEL FOR THE RESPONDENT: | Mr Tatarka |
| SOLICITOR FOR THE RESPONDENT: | Berry Family Law |
Orders made 15 September 2017
The hearing of appeal no. SOA 57 of 2017 be expedited.
Appeal no. SOA 57 of 2017 is referred to a directions hearing before the Southern Appeals Registrar not before 3:00pm on 15 September 2017 to prepare the appeal for hearing before the Full Court commencing at 10:00am on either Monday 2 October 2017 or Thursday 5 October 2017.
Subject to the hearing and determination of appeal no. SOA 57 of 2017 the application in an appeal filed by the appellant wife on 1 September 2017 in appeal no. SOA 66 of 2017 be dismissed.
The appellant wife pay the respondent husband’s costs of and incidental to the application in an appeal filed on 1 September 2017 such costs to be taxed in default of agreement.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Wilmer & Golding has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Numbers: SOA 57 and 66 of 2017
File Number: MLC 11080 of 2015
| Ms Wilmer |
Appellant
And
| Mr Golding |
Respondent
REASONS FOR JUDGMENT
Introduction
On 1 September 2017 Ms Wilmer (“the wife”) filed an application in an appeal seeking an order expediting the hearing of the Notice of Appeal filed by her on the same day, seeking leave to appeal, and if leave is granted, to appeal against certain of the orders made by Judge McNab on 16 August 2017. The wife also sought an order consolidating that Notice of Appeal with the Notice of Appeal in appeal no. SOA 57 of 2017 filed by her on 9 August 2017.
The application for expedition is opposed by Mr Golding (“the husband”), but he did not oppose an order being made consolidating the two appeals.
The orders sought to be appealed against are his Honour’s dismissal of the wife’s application to stay the proceedings pending the hearing and finalisation of the appeal, an order for costs, and an order amending the time estimated for the hearing of the trial fixed to commence on 23 October 2017.
Although the application that was before the court was the wife’s application to expedite the hearing of the appeal against certain of the orders made on 16 August 2017 (appeal no. SOA 66 of 2017), during the course of the hearing the wife in effect made an oral application to expedite the hearing of the appeal against the orders made on 9 August 2017 (appeal no. SOA 57 of 2017), and I will explain how that arose shortly.
The applications were heard by this court on 15 September 2017, and at the conclusion of the hearing I made orders disposing of the same, but because of time constraints I was unable to deliver my reasons for judgment in relation to orders (1), (2) and (3), and they were left to be delivered at a later date. I now provide those reasons for judgment.
I record though, that with the order for costs made on 15 September 2017 (order (4)), I was able to deliver brief ex tempore reasons in relation to that order, and those reasons for judgment appear at the conclusion of these reasons.
Relevant background
On 25 September 2015 the husband commenced proceedings in the Federal Circuit Court seeking parenting and property settlement orders.
On 15 February 2106 the wife filed a response.
On 14 November 2016 the trial was adjourned to 23 October 2017.
In or about late 2016, the wife engaged Ms B of B Family Law to represent her in the proceedings.
On 12 May 2017 Ms B closed her firm and took up a position with Berry Family Law, the firm of solicitors representing the husband in these proceedings.
On 20 June 2017 the wife engaged Mitchell Family Lawyers to represent her.
On 27 June 2017 Mitchell Family Lawyers wrote to Berry Family Lawyers objecting to them continuing to act because there was a conflict of interest.
On 12 July 2017 Berry Family Lawyers responded, providing various undertakings said to establish an information barrier protocol as recommended by the Law Institute of Victoria.
In a response to an application in a case filed on 21 July 2017, the wife sought orders restraining a named solicitor at Berry Family Law from continuing to represent the husband in the proceedings, and restraining the husband from retaining that named solicitor, or any partner or employee of Berry Family Lawyers in the proceedings.
That application was heard by the primary judge on 31 July 2017 and 1 August 2017, and on the latter date the primary judge dismissed the same, reserved the question of costs to 10 August 2017, and indicated that in the event of an appeal being filed, the application for a stay foreshadowed by the wife be heard on 10 August 2017.
On 9 August 2017 the wife filed a Notice of Appeal seeking to appeal, and if leave is granted, to appeal against the order dismissing the restraint application.
On the same day, the wife filed an application in a case seeking an order that the proceedings be stayed pending the outcome of the appeal filed on 9 August 2017.
That application was heard by the primary judge on 10 August 2017, and on 16 August 2017 his Honour delivered reasons for judgment and made the orders the subject of the Notice of Appeal filed on 1 September 2017.
The applicable principles
Section 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) provides that a Full Court of the Family Court or a judge of the Appeal Division or another judge if there is no judge of the Appeal Division available, may make an order to expedite the hearing of an appeal. There is no provision in the Act or in the Family Law Rules 2004 (Cth) (“the Rules”) which specifically deals with the criteria to be applied on expedition of an appeal.
However, r 12.10A deals with applications to expedite the first day before the judge, and it provides a list of factors to be taken into account, which can usefully be applied in applications to expedite the hearing of an appeal. That list is as follows (r 12.10A(2)):
(a)whether the applicant has acted reasonably and without delay in the conduct of the case;
(b)whether the application has been made without delay;
(c)any prejudice to the respondent; and
(d)whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases.
In relation to what is a “relevant circumstance”, r 12.10A(4) provides a number of examples, but particularly in the context of this case, one such example is where “the purpose of the case will be lost if it is not heard quickly” (r 12.10A(4)(e)). I highlight that because the primary basis put by the wife for seeking expedition is that, if the appeal is not expedited and heard and determined before the hearing of the trial listed to commence on 23 October 2017, the appeal will be of no effect; it will be rendered nugatory.
Discussion
Before addressing the factors set out in r 12.10A(2), it is necessary to deal with a submission made by the husband that expedition of the hearing of the stay appeal will serve no purpose in the context of what the wife is looking to achieve, and it is an unnecessary diversion.
In short, the husband says that if the stay appeal is successful, then what will be stayed is the order made by the primary judge, namely the dismissal of the restraint application. However, that would neither prevent the husband’s solicitors from continuing to act, nor prevent the trial commencing on 23 October 2017. In other words, it would not provide the wife with the outcome that she in fact seeks.
However, that submission is misconceived because the application was not to stay the operation of the order, but to stay “the proceedings” pending the hearing and finalisation of the appeal, and that is the application that his Honour heard and determined. Thus, if the stay appeal was successful, then the entire proceedings would be stayed, including the applications the subject of the trial, pending the hearing of the appeal against the dismissal of the restraint application.
Despite this though, it is readily apparent that that is not the ideal outcome. The ideal outcome would be a determination of the appeal against the dismissal of the restraint application before 23 October 2017. Thus, if successful, the husband would have to obtain alternate legal representation, but if unsuccessful, the husband’s solicitors would remain in place and the trial could proceed.
On that basis it can be seen that the course the wife should have adopted was to seek to expedite the hearing of the appeal against the dismissal of the restraint application, rather than seek a stay, then appeal when unsuccessful, and then seek expedition of the hearing of that appeal.
During the hearing counsel for the wife explained that they chose the latter course because they were unsure if the Full Court would be able to accommodate what was seen to be the more complex appeal on an expedited basis. Counsel also sought to suggest that despite making no application for expedition for that appeal, it was thought that that could be addressed at this hearing when considering expedition of the stay appeal, and consolidation of both appeals. How that could be the case escapes me, but that difficulty was overcome by the wife in effect making an oral application for expedition of the earlier appeal.
To return then to the factors to be taken into account in considering an application for expedition, but now in relation to the appeal against the dismissal of the restraint application.
The husband submits in effect that by choosing the path that she did, the wife has not “acted reasonably and without delay in the conduct of the case”, and nor has the application been made “without delay”. There is no doubt that the wife could have brought an application for expedition as soon as she had filed her appeal against the order dismissing the restraint application, and the course that she took instead can be viewed, prima facie, as an unnecessary diversion, but with some reservation I find that it was not entirely unreasonable for the wife to take the course that she did. Moreover, given that this court can still accommodate hearing and determining the earlier appeal, then all is not lost in the context of attempting to ensure that the trial can proceed on 23 October 2017, depending on the result of the appeal.
As to the issue of prejudice to the respondent, the husband says that if expedition is granted and that leads to the trial being adjourned, then he will be prejudiced because he is under significant financial pressure, and that can only be alleviated by finalisation of the property settlement proceedings. Plainly that is a relevant factor, but expedition should only cause the trial to be adjourned if the appeal is successful and new solicitors have to be engaged. That cannot be a basis for refusing expedition and thereby effectively delaying the appeal until after the trial takes place.
As to rr 12.10A(2)(d) and 12.10A(4)(e), I am persuaded that “the purpose of the case will be lost if it is not heard quickly” and that provides justification for giving this appeal “priority to the possible detriment of other cases”.
Plainly, if the appeal is not heard until after the trial takes place, then if the appeal is successful and it is found that the husband’s solicitors should be restrained from acting for him, that will almost certainly mean that the trial will have to be reheard.
Before leaving the consideration of these factors, I note that the husband submitted that it was also necessary for this court in considering an application for expedition to assess the merits of the appeal, and if there is not a reasonable chance of success then that would militate against the appeal being expedited. However, no authority was cited for that proposition, and as I indicated to the husband’s counsel, it is not possible at a hearing like this for this court to be definitive about the prospects of success of the appeal. The most that this court can do is to assess whether there is an arguable case. Here, the husband’s counsel submitted that it is a “weak case”, but frankly that is sufficient to not only allow the appeal to proceed, but also to be expedited.
Conclusion
In all the circumstances I find that it is appropriate to expedite the hearing of the appeal against the dismissal of the wife’s restraint application.
Given that outcome, there is no basis to expedite the hearing of the appeal against the order dismissing the stay application. However, what I will do is keep that application alive until the hearing and determination of the earlier appeal. It should be dismissed though once that occurs.
In relation to the application to consolidate the appeals, given that the hearing and determination of the earlier appeal will overtake the later appeal, it is unnecessary to consolidate them.
That outcome still leaves the later appeal on foot, but I would expect that, subject to whether the wife wishes to pursue the appeal against the order for costs made by his Honour, that appeal would either be withdrawn or dismissed once the earlier appeal is finalised.
Costs
The following reasons were delivered ex tempore on 15 September 2017.
In short compass, the husband’s application for costs is based on the fact that the orders I made can be considered an indulgence to the wife, and I add, because those orders only came about as a result of me treating the submissions made on 15 September 2017 as being an oral application by the wife to expedite the substantive appeal (appeal no. SOA 57 of 2017).
The application for costs is opposed, and it is put to me that in effect the oral application by the wife has been wholly successful, and that the process undertaken by the wife in terms of seeking a stay, then filing an appeal against a refusal of the stay, and then seeking to expedite that appeal, was an appropriate course.
In my view, this is a matter where there are circumstances which justify an order for costs.
It is an indulgence which I have granted to the wife. And to repeat, in my view the appropriate course in this matter would have been to take out an application to expedite the substantive appeal.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Strickland J delivered on 3 October 2017.
Associate:
Date: 3 October 2017
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