Parties Dispute Summary Dismissal of Appeal
Draper & Corwin [2022] FedCFamC1A 177 (26 October 2022)
The respondent to the appeal seeks an order that the appeal be summarily dismissed, or alternatively, an order for security for costs. The grounds as pleaded mount a broad and relatively unspecific attack upon the appealed orders. The Court, in resolving this dispute, relied upon Federal Circuit and Family Court of Australia Act 2021 (Cth).
Facts
Before the Court for determination is an Application in an Appeal, filed by the respondent on 21 October 2022, seeking orders in these terms:
- that the Amended Notice of Appeal filed by [the Applicant] on 29 September 2022 be summarily dismissed;
- that in the alternative to Order 1 herein, [the Applicant] pay to the Respondent the sum of $21,400 or such other sum as this Honourable Court deems appropriate to the trust account of the Respondent's solicitors, KCL Law, within 7 days of the date of this order as security for the Respondent's costs of this Appeal;
- that in the event that [the Applicant] fails to comply with Order 2 of these Orders, the Appeal stand dismissed;
- that [the Applicant] pay the Respondent's costs of and incidental to this Application on an indemnity basis;
- Such further or other orders as this Honourable Court deems appropriate.
The substantive appeal (and the attendant application for leave to appeal), filed as recently as 20 September 2022, lies from orders made by the primary judge on 24 August 2022 and is listed for hearing before the Full Court on 8 December 2022.
As can be seen from the pending interlocutory application, the respondent wants the appeal summarily dismissed or, in the alternative, her costs of the appeal secured in advance by the applicant. The respondent sought such orders be made in the parties’ absence, pursuant to r 13.38 and Pt 5.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), but it was more appropriate to swiftly list the application for hearing between the parties in open court.
The two alternative forms of relief sought by the respondent are amenable to determination by a single judge (ss 32(2)(e), 32(3)(b) and 32(5) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)), even though the appeal must be heard by the Full Court (s 32(1)(b)). Both forms of relief were resisted by the applicant.
In support of her application, the respondent relied upon the affidavit she swore on 21 October 2022, though it was not actually filed until some days later. The respondent asserts that [the applicant] does not have an arguable case in the Appeal, and that the Appeal does not have any prospect of success.
The grounds of appeal lie from orders which achieve several different outcomes, namely:
- the dismissal of an interlocutory application brought by the applicant (Order 1);
- the dismissal of an enforcement application brought by the applicant (Order 2);
- a declaration that the parties’ unresolved applications for final relief under Pt VII and Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) will be heard by the Federal Circuit and Family Court of Australia (Division 1) (Order 3);
- the discharge of an order made in April 2021 (Order 4); a procedural order directing that the respondent’s divorce application be fixed for hearing (Order 5); and the imposition of what purports to be an anti-suit injunction, preventing the applicant from seeking matrimonial relief in proceedings he instituted in the United States of America (Order 6).
Issue
Whether or not the appeal has reasonable prospects of success.
Applicable law
Analysis
The grounds of appeal complain, in part, of judicial bias (Ground 5) and the denial of procedural fairness (Ground 4), which must inferentially arise from the manner in which the primary judge conducted the hearing on 15 June 2022.
The remaining grounds of appeal appear, on their face, to attack only the anti-suit injunction. These grounds assert legal, factual and discretionary errors in the primary judge’s application of the test to determine whether Australia is a “clearly inappropriate forum” to entertain the parties’ various matrimonial disputes (Grounds 1–3). Again, on the strength of nothing more than the respondent’s subjective opinion, it is not possible to conclude at this early stage of the appeal that those grounds have no reasonable prospects of success. The respondent criticised the validity of the written submissions advanced by the applicant in support of the appeal, as were annexed to his affidavit filed on 25 October 2022, but he deposed such submissions as “a preliminary draft of summary of arguments”.
No procedural orders have yet been made setting the date by which the applicant must file and serve his settled Summary of Argument in the appeal. The respondent deposed that her application for security for her costs in the appeal is premised upon several features in aggregation: her modest financial circumstances; her uncertainty about the applicant’s financial circumstances; the difficult she would likely encounter enforcing any costs order in her favour due to the applicant’s residence abroad and her assertion that he has no assets in Australia; and the applicant’s history of breaching costs orders in prior proceedings between the parties. Although the application for summary dismissal fails because the respondent cannot presently demonstrate the appeal has no reasonable prospects of success, it does not conversely follow that the appeal has reasonable prospects of success.
Conclusion
Within 14 days, the applicant shall pay to the respondent’s solicitors on the Court record the sum of $12,500 by way of security for the respondent’s party/party costs of and incidental to the appeal, which sum shall be held by them on trust until this appeal is determined and further orders are made as to costs. In default of payment pursuant to Order 1, the appeal is forthwith dismissed. Otherwise, the Application in an Appeal filed on 21 October 2022 is dismissed. The parties shall bear his and her own costs of this application.
