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SIGNIFICANT JUDGMENTS Part 5 The question for determination was, having regard to the principles to be exercised when considering summary dismissal or permanent stay of the substantive proceedings, the consequences of an undefended hearing on the husband and the evidence before the court, would a dismissal of the husband’s application for leave to appeal constitute a failure to provide justice to the husband or, having regard to the wife’s legitimate claim to have her application heard in a timely manner without further delay and costs, pursuant to the inherent powers of the court, should the husband’s application be dismissed or permanently stayed. Counsel for the wife submitted that the application for leave to appeal should not be permitted to proceed because of: the husband’s previous breaches of orders his failure to comply with directions for the appointment of a single joint expert his failure to submit to a medical examination the significant and ongoing costs of the wife, and the lack of certainty about whether the husband would be able to prosecute his appeal. Counsel for the husband submitted that while the wife was put in a difficult position: the husband’s application was not hopeless a medical certificate had been submitted he had not had adequate notice of the hearing of the wife’s application, and shutting the husband out of the proceedings was serious. Held: Application of wife dismissed. 1. The matter is finely balanced. The procedural history strongly indicates that exercising discretion in favour of the husband is unwarranted, but the court’s inherent power to dismiss an application when the effect of such dismissal will be to severely prejudice a party must be exercised with great care. 2. The husband’s application for leave to appeal is not compelling; however it is not entirely hopeless. His conduct in these proceedings, prima facie, militates against the exercise of discretion in his favour. However, the court was not satisfied that the husband’s application for leave to appeal was doomed to fail, or that it is frivolous or vexatious. 3. On balance, the factors favouring the hearing of the application for leave to appeal on its merits outweigh any prejudice to the wife. 66 Family Court of Australia Annual Report 2005–2006
Costs — Security for costs application — Factors to be taken into account when determining whether to make an order for security for costs. Landy v Landy [2005] FamCA 1257, (2005) FLC 93-244, (2005) 34 FamLR 5, 30 December 2005 Full Court of the Family Court of Australia before Rowlands, Holden and May JJ This was an application by the husband seeking an order that the wife pay the sum of $40,000 by way of security for costs for the costs of her appeal to the Full Court against property settlement orders. Before the trial Judge, the husband’s case was that his liabilities vastly exceeded his assets and that he had received professional advice that he should enter into an arrangement pursuant to Part X of the Bankruptcy Act 1966. The wife’s case was that the husband had ownership or control of companies worth more than $2 million The trial Judge rejected the valuation evidence of the wife’s expert witness finding him to have been grossly partial and his valuation to have been unsustainable. His Honour accepted the evidence of the husband’s expert witnesses in relation to financial issues. Part 5 SIGNIFICANT JUDGMENTS The wife had no assets or income from which she could pay any order for costs. The wife’s grounds of appeal were, inter alia, that: his Honour erred in failing to adjourn the further hearing of the case to enable the appellant to have full discovery and inspection of the husband's financial affairs, and his Honour erred in accepting the evidence of the husband and the witnesses called on behalf of the husband. The husband argued that the wife was impecunious and in the event that the Full Court dismissed her appeal, he would not be able to enforce any order for costs against her; there was doubt about the bona fides of her appeal; and there was very little prospect of the appeal succeeding. Application adjourned: Liberty to the wife to argue those grounds of her appeal that related to procedural fairness as a preliminary issue to the appeal. 1. With respect to those grounds of the wife’s appeal that related to procedural fairness, the wife ought not to be denied the right to appeal due to her impecuniosity. Those grounds were ‘on the face of it, [not] so devoid of merit as to justify the making of an order for security for costs’. Even if the wife’s expert witness was completely discredited as an accounting expert, the trial may have miscarried if the husband had failed to fully disclose his financial position. If the wife succeeded in establishing a lack of procedural fairness, the matter would be remitted for a re-hearing and the other grounds of appeal would not need to be explored. Family Court of Australia Annual Report 2005–2006 67
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Family Court of Australia | Annual
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Family Court of Australia Annual Re
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Output Group 1.1 Resolution 34 Cons
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JRC LIH MC MO NEC NSO OH&S PAC PBS
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Chief justice’s review Part 1
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The past year has been a challengin
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Conclusion The Family Court of Aust
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Overview of the court Part 2 12 Fam
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Governance The Chief Justice is res
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FAMILY COURT OF OF AUSTRALIA SCHEDU
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Appendices Part 8
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Appendix 1 Court Committees and Pub
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In addition to the Law Reform Commi
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Appendix 2 Judicial activities In a
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Many judges and judicial registrars
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Registries ADELAIDE 3 Angas St, Ade
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APPENDIX 4 Resources for Outcomes O
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Glossary of terms Part 9 174 Family
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Judicial Registrar - A judicial off
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Compliance index Part 10 178 Family
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Compliance index Part 10 Corporate
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Alphabetical Index Part 10 Australi
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Alphabetical Index Part 10 Deputy C
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Freedom of Information Act 1982, 10
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O Alphabetical Index Part 10 Occupa
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Alphabetical Index Part 10 Women’
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