SCVG & KLD (No. 3) [2016] FamCAFC 188; (23 September 2016)

Last Updated: 29 September 2016

FAMILY COURT OF AUSTRALIA













FAMILY LAW – COSTS – Where the applicant has been wholly unsuccessful – Whether an order for indemnity costs is appropriate – Applicant to pay indemnity costs of the respondent as assessed. FAMILY LAW – APPEAL – Where the applicant seeks a stay of orders dismissing his application for an extension of time to challenge orders made in the court’s original jurisdiction –Where the court has no power to grant the relief sought – Where a stay of orders would not preserve the subject matter of the dispute – Where there is no efficacy in a stay of orders which dismissed an application for an extension of time to appeal or review – Application dismissed.FAMILY LAW – COSTS – Where the applicant has been wholly unsuccessful – Whether an order for indemnity costs is appropriate – Applicant to pay indemnity costs of the respondent as assessed.













APPLICANT: SCVG

RESPONDENT: KLD

FILE NUMBER: SYC 4380



of 2008

FIRST APPEAL NUMBER: EA 107



of 2013

SECOND APPEAL NUMBER: EA 174



of 2015

DATE DELIVERED: 23 September 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 7 September 2016

LOWER COURT JURISDICTION: Family Court of Australia (Appellate Jurisdiction)

LOWER COURT JUDGMENT DATE: 24 February 2016

REPRESENTATION

FOR THE APPLICANT: SCVG in Person

SOLICITOR FOR THE RESPONDENT: MacPhillamy’s Lawyers



















ORDERS

(1) The application be dismissed.



(2) The applicant pay the respondent’s costs of this application calculated on an indemnity basis; to be paid within twenty eight (28) days of agreement or as assessed.





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 SCVG & KLD 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 DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY









Appeal Number: EA 107 of 2013; EA 174 of 2015



File Number: SYC 4380 of 2008





SCVG

Applicant





And





KLD

Respondent













REASONS FOR JUDGMENT

By Amended Application in an Appeal filed on 25 August 2016, SCVG (“the applicant”) applied for a stay of orders made by Ainslie-Wallace J on 24 February 2016. Her Honour, in the exercise of the appellate jurisdiction of the Family Court, dismissed two applications made by the applicant for an extension of time within which to challenge orders made in the court’s original jurisdiction. The first application sought an extension of time to file a Notice of Appeal against orders made by Cronin J on 27 February 2015. Relevantly, his Honour ordered that the parties’ two children live with the mother and that in relation to contact with the father, he be permitted to speak to them on a nominated day each week and to send letters, cards and gifts. An order was also made pursuant to s 118 of the Family Law Act 1975 (Cth) (“the Act”) which restrained the father from commencing proceedings in relation to the children without permission from a judge of the Family Court. The father’s application for an extension of time was filed almost seven months after the prescribed time for the filing of an appeal had lapsed. The gravamen of her Honour’s decision to refuse to extend time is found at [23] and set out below:

However, I am of the view that by reason of the delay, the inadequate explanation for that delay and the undoubted prejudice to the mother and by implication the children, no extension of time should be granted. The application for an extension of time in which to bring an appeal against the orders of Cronin J will be dismissed.

The second application sought an extension of time to seek a review of a costs assessment order made on 9 October 2014. That application was brought some 12 months after the prescribed period had lapsed. Ainslie-Wallace J was not satisfied that the applicant’s explanation for the delay was sufficient to engage an exercise of discretion in his favour or “... that this is a case in which an extension of time is required to do justice between the parties” ([37]). The applicant was ordered to pay the costs incurred by KLD (“the respondent”), with such costs to be agreed or assessed. The applicant sought a grant of special leave from the High Court to challenge the orders made on 24 February 2016 and, pending determination of that application, for this court to stay the operation of the orders. However, the application for special leave was dismissed before the application for a stay was determined. Thus, the Appeal Registrar invited the applicant to consider whether he might withdraw his application for a stay. He elected not to and albeit on different grounds, pursued an amended application which, at the hearing, he amended again. By these amendments, the applicant sought the orders of 24 February 2016 be stayed pending finalisation of his request to the Chief Justice to recommend to the Governor General of Australia the removal of two judges of this Court (not Ainslie-Wallace J), the finalisation of an action in damages against the same judges he would shortly file in the original jurisdiction of the High Court and, on the motion of the One Nation Party, resolution by the Federal Parliament to abolish the Family Court of Australia and/or significantly amend the Act. I understood the applicant to agree that by letter dated 4 May 2016 (attached to the applicant’s affidavit of 25 August 2016) the Attorney-General for the Commonwealth had determined not to intervene in the manner requested by the applicant and thus, he abandoned his request for a stay pending “the final outcome” of that complaint. If I misunderstood his position, I am satisfied the Attorney General has finalised his consideration of the complaint and that aspect of the application for a stay must therefore fail. Two questions thus require consideration. The first concerns power to make the orders sought; the second is the efficacy of a stay made in relation to an order for the dismissal of an application for an extension of time to appeal and/or review. Turning then to the question of power. At the commencement of the hearing the applicant was asked to identify the power by which he contended the relief sought might be granted. None was identified and the applicant simply said he assumed there was. For a litigant as experienced in litigation as the applicant, this approach was surprisingly cavalier. In any event, in the absence of an extant appeal or an application for special leave to appeal, I have been unable to identify a source of power in the Act (or elsewhere) which would establish a foundation for the orders sought. It follows that r 22.11 of the Family Law Rules 2004 (Cth) (“the rules”) does not apply and, nor could r 1.09 (procedural orders in cases of doubt or difficulty) be invoked. However, even if there was power to grant a stay in these circumstances, the purpose of a stay is to preserve the subject matter of the litigation pending determination of the underlying cause. A stay of an order which refused an extension of time to take a step which could not otherwise be taken is an entirely different creature. It would simply preserve the final orders which would continue to be enforceable. In the unusual circumstances of this case, with there being no further right of appeal and special leave to appeal rejected, it would be an abuse of the court’s process to grant a stay on the basis contended for. Although the order that the applicant pay the respondent’s costs of his unsuccessful application for an extension of time falls into a slightly different category, the applicant has not established that he has substantial prospects of securing the relief sought. Nor if the events pending which he contends the stay should operate, how these would logically affect the orders of 24 February 2016. There can be no doubt that the respondent should not have to wait for these various highly speculative events to come to pass to await payment of the costs ordered in her favour. The application should be dismissed. In these circumstances, the respondent sought that the applicant pays her costs on an indemnity basis which was quantified at $7,500. The applicant has been wholly unsuccessful and an order for costs in the respondent’s favour is justified and appropriate. An order for indemnity costs involves a very great departure from the normal standard and in this jurisdiction such costs are rarely ordered. Reference was made earlier to the applicant’s inability to identify even a putative head of power which would have enabled the granting of a stay. The applicant is such an experienced litigant (reference need only be made to the decided cases conducted by him or on his behalf in courts exercising jurisdiction under the Act, as well as the High Court, to establish that fact) that his failure to address that point should be treated as wilful and without any regard for the prospect that the respondent might be put to the trouble and expense of defending an entirely unmeritorious application. The applicant can have been in no doubt that his application was most unusual and his refusal of the invitation by the registrar to withdraw his application was beyond imprudent and can properly be categorised as a decision taken in total disregard of the known facts. As to the quantum of costs sought, by way of compliance with r 19.08(3) of the rules, the best the solicitor could do was to advise that the terms of the respondent’s costs agreement provided for his time to be charged at $490 per hour. The solicitor estimated that the total costs, calculated by reference to the agreement, were in the amount mentioned earlier. In circumstances where the volume of material relied upon in the application was small and the solicitor for the respondent appeared by telephone, the estimate seemed to be more of a guess than an assessment upon which the court could rely. In these circumstances, although it is appropriate to make an order that the applicant pays the respondents costs calculated on an indemnity basis, it is not possible to fix the amount of costs in the amount sought. Thus an order will be made that the applicant pays the respondent’s costs on an indemnity basis within 28 days of agreement or as assessed.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 23 September 2016.







Associate:







Date: 23 September 2016