Applicant Seeks Extension to Review Previous Orders
Massalski & Riley [2022] FedCFamC1A 128 (15 August 2022)
The applicant seeks an extension of time to review the orders made by an appeal judicial registrar. The Court, in determining its final orders, considered how there was no explanation for the delay in bringing the review applications.
Facts:
Ms. Massalski (“the applicant”) seeks an extension of time to review the orders made by an appeal judicial registrar in proceedings between her and Mr. Riley (“the respondent”). The appeal judicial registrar made the following orders: By 4.30 pm (AEST) on Tuesday, 17 May 2022 [the applicant], pay by way of security for costs the sum of $30,000.00 to [the respondent’s] solicitor, ..., Solicitor, to be held by him pending further order of the Court. In the event that [the applicant] fails to comply with order 1 above, appeal NAA38/2022 is stayed pending further order of the Court. The costs of the Application in an Appeal filed on 31 March 2022 are reserved and are to be considered as costs in the appeal.
The effect of these orders was that the appeal would be stayed if the applicant failed to pay $30,000 as security for the respondent’s costs of appeal. The applicant did not provide the security as ordered. On 20 June 2022, the appeal judicial registrar dismissed the applicant’s appeal, pursuant to s 32(3)(f)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and ordered her to pay the respondent’s costs fixed at the sum of $7,000. On 24 December 2019, McClelland DCJ made final property orders between the parties. Those orders were the subject of an appeal which was dismissed.
On 19 August 2021, the applicant was ordered to pay the respondent’s costs of the appeal, fixed in the sum of $30,000. On 10 August 2021, the applicant filed an Initiating Application seeking to set aside the property orders. On 4 February 2022, the primary judge summarily dismissed the applicant’s Initiating Application. A Notice of Appeal was filed on 2 March 2022. This led to the application by the respondent for the provision of security for costs.
The appeal judicial registrar found that: although the applicant had failed to pay the respondent various costs she had been ordered to pay, she “has, or could readily put herself where she has, the means to comply with an order for security for costs”; the appeal had very little prospects of success and thus a costs order was therefore highly likely; the appeal was brought mala fides because the applicant “has been using the processes of the Court with the ulterior motive of delaying the enforcement of orders with which she does not, and will likely never agree”; and an order for security would not stifle the appeal.
Issue:
Whether or not any appeal from the orders made on 4 February 2022 have any prospects of success.
Applicable law:
Analysis:
Any application for review of the 19 April 2022 orders should have been filed on or before 10 May 2022. Accordingly, the delay in seeking the review is over two and a half months. Any application for review of the 20 June 2022 orders should have been filed on or before 11 July 2022. Accordingly, the delay in seeking the review was eight days. The affidavit in support of the application filed on 19 July 2022 gives an extensive history and discussion of the applicant’s various grievances since 4 August 2021 but offers no explanation as to why the Applications in the Appeal were not filed within the prescribed time, or why it has taken some two and a half months to seek to review the earlier of the appeal judicial registrar’s decisions.
The grounds of appeal merely summarise the various grievances the applicant holds against the respondent, his solicitor, and the court. The oral submissions of the applicant did not further assist. Any review of the registrar’s decision for the provision of such security has either no or very limited prospects of success. The decision of the registrar of 20 June 2022 was inevitable, given the failure to provide the security that had been ordered, or to seek an extension of time to do so.
Indeed, the attitude of the applicant at that time was that she was not prepared to do so. Accordingly, there is no prospect of a different outcome ensuing on a review of that decision.
Conclusion:
The Application in an Appeal filed on 19 July 2022 is dismissed. The applicant should pay the costs of the respondent fixed in the sum of $8,000.
