Nest v Nest [2014] HCATrans 278 (10 December 2014)

Last Updated: 11 December 2014

[2014] HCATrans 278

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A27 of 2014

B e t w e e n -

NEST

Applicant

and

NEST

Respondent

Application for stay

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON WEDNESDAY, 10 DECEMBER 2014, AT 2.59 PM

Copyright in the High Court of Australia

HIS HONOUR: Now, you are appearing on your own behalf, are you? Is that right?

MR NEST: Yes, your Honour.

MR NEST appeared in person.

MR NEST: Do I use my – which name do I use?

HIS HONOUR: Given the practice of the Family Court is to use pseudonyms I assume we should maintain that fiction, at least for the moment, so forgive me if I refer to you as Mr Nest, well knowing that that is not your proper name, but this is the fictional world into which we must enter.

Now, Mr Nest, the Registrar has emailed the respondent to the application earlier today telling her of the making of this application. She has replied, in effect, that at the shortness of notice she is unable to attend. Therefore, we will proceed, but proceed as on the basis that you are applying without notice to her. So you, as I understand it, seek a stay of some orders made by a single judge of the Family Court. Is that right?

MR NEST: Correct, your Honour.

HIS HONOUR: You have applied to this Court for special leave to appeal against two orders of Justice Berman, namely orders made on 10 November and 25 November. Is that right?

MR NEST: That is correct, your Honour.

HIS HONOUR: Now, the order of 10 November, at least as I presently understand it, was an order that in some respects amended orders that Justice Berman had made earlier on 16 July 2014 dealing with property settlement matters between you and your wife. Is that right?

MR NEST: Yes, well, it was a bit more involved than just – it was more than the slip rule – that he claims. I am claiming that he actually moved the goalpost and he made substantial changes ex parte – I was not even there and so if you look at my applications - - -

HIS HONOUR: Yes, I have read that.

MR NEST: It mentions how that came about and also the affidavit picks up on it as well. What I am virtually saying is that I did not know what was going on at the time. I had an application in there as well, so there were two applications before him and he chose to ignore mine and go on with the application of Mrs Nest and subsequently that is where those orders come from on the 10th. Then by the time I got to find out what had happened – I got a copy – I ended up getting a copy of the transcript and eventually got a copy of the judgment, I then immediately put in another urgent application to have a stay. I have tried to get a stay from this particular judge, via the Full Court. They keep directing me back to that particular judge - - -

HIS HONOUR: Can I just interrupt you there because I just want to be clear about this. Have you lodged any notice of appeal or made any application for leave to appeal to the Full Court of the Family Court against the orders of Justice Berman?

MR NEST: I put one in on 8 November.

HIS HONOUR: What was that application? Was that a notice of appeal or was that an application for leave to appeal?

MR NEST: No, that is a notice of appeal and I was just corresponding with the Registrar this morning about some of the parts of the document but she has agreed to – on the actual expiry date, as I was told by her was 8 November that was – that application to do with the orders of the 10th have been put in now. I am just waiting for them to be stamped and then back to me. Now, the - - -

HIS HONOUR: Again, can I interrupt you because I need to just take this a little more slowly so that I quite understand what has happened. First, you have filed a notice of appeal on 8 November. Do I have that right?

MR NEST: Correct.

HIS HONOUR: That is a notice of appeal against what order or orders?

MR NEST: The orders of 10 November of Justice Berman. I actually had put in – after that particular one – I tried to amend it but that is my mistake from not knowing how to properly do these matters – with the rules. She is telling me I have to put an appeal in for each set of orders so, e.g. the 10th, I have to put an appeal; the 25th I have to put an appeal. The 25th runs out – the deadline runs out for that which is in – can I refer you to an exhibit?

HIS HONOUR: Yes.

MR NEST: In my affidavit, which is PPN2 – in correspondence and numbered 1 to 4, if you turn to the back page that is where it starts and it is then working forward in time - - -

HIS HONOUR: Just a moment, I am not quite with you yet. Let us just – now, document 10 in your bundle is a draft notice of appeal to the Full Court of the Family Court. Is that right?

MR NEST: That is right, yes. That is what I showed to Justice Berman on the 25th.

HIS HONOUR: Now, have you filed that notice?

MR NEST: I think I changed it. Yes, I did because this one was related to the orders of 16 July, which was the first orders that he has ended up changing on the 10th, if you follow what I mean. If you turn to PPN2 you will see my conversation starts at number 1.....and form 2. Now, I have always – I have had a bit of an issue with this rule, what the Family Court rule 22.11 in that they – that according to that rule.....myself has to go back to the same judge and ask for a stay. My argument is well, why would you have to do that if you believe that judge is biased against you. Look, I have probably five, six times – every time I have asked for a stay is – there is not any. Now, I have found a case – I found a case and if you go to the end of the page there it is called Paringa Mining & Exploration and that is the whole - - -

HIS HONOUR: I know about Paringa Mining, yes.

MR NEST: You know that that is related to a Supreme Court case and going back to the same judge and there is a couple of statements there by a High Court Judge that says, you know, that that is really not appropriate if you are actually trying to – you are perhaps going to appeal against his judgment at the end of the day. So – and they also mentioned something about the fact that it would be depriving the High Court or a higher court from being able to do its statutory duty, which is look into the appeal. So, I pointed this out to Ms Marrone in that correspondence email – that correspondence email in the – the first one there at number 1 on page 21.

HIS HONOUR: Yes.

MR NEST: I also quoted a couple of other cases and mentioned that the hearing of the 10th I am claiming that the court was functus officio with no power. You might have power to do it under the slip rule but he did not have power to what he later did which was change the way – settlements, where the money was. He allowed the other side to pick up a title that was in a safety envelope in a bank, who to sign and he allowed her to go and pick that up. She has now got it. I do not know where it is. It is not with the conveyance. So a whole lot of things.

So what I was saying is that that is not on, according to my researches and that is one of the reasons why I would appeal against that – or I have appealed. Now, when we go on through – we go to number 2 and we are talking about – she fights back and she is talking about time line and this rule 22.11. Then I come back at number 3, which is on page 18, and I am trying to sort of get a stay through the Full Court because I cannot get one through this Berman J. So I am trying all - - -

HIS HONOUR: Can I interrupt you? Have you, in fact, applied to Justice Berman for a stay?

MR NEST: Yes, about – I will get it on the 25th. The application that was supposed to be heard on the 10th had one in it. I have done it before in the other appeals that I instigated back at the start of the year, asked for stays because this is - - -

HIS HONOUR: All right. Well, let us work for the moment - - -

MR NEST: Yes.

HIS HONOUR: No, just a moment. Let us work for a moment on the assumption that you have made an application for a stay. You want to obtain from me an order staying execution of the writ of possession. Is that right?

MR NEST: That is correct.

HIS HONOUR: Can I again just make sure whether I understand what has happened in the case? On 16 July, Justice Berman made orders for property settlement between you and your wife. Is that right?

MR NEST: That is correct.

HIS HONOUR: I have taken the liberty of looking at the reasons for judgment that Justice Berman published about that application. Do I understand that the orders that were made by Justice Berman were, in effect, (1) if you paid your wife an amount of money she would transfer to you her interest in one property? If that did not happen, she would transfer to you an interest in another property and pay you a different sum of money. Is that right?

MR NEST: That is a sort of a skinny interpretation, yes. My main issue was that if you – I do not know if you saw that but I was not actually there at the trial because I was sick.

HIS HONOUR: I saw that.

MR NEST: And you can see by my PPN1 I had these doctors’ certificates and I ended up having to get some psychiatric evaluation, get on – he was told this, actually, halfway through the trial. I said look, I cannot cope. I have to go and get some pills or something to calm all my nerves down. At that particular time in February it was like 40 degrees every day here in Adelaide. It was just intolerable. I was getting two hours sleep. I had cramps and so on and so on. I said, “Look, can you adjourn it.” The doctor sent a letter to him, can you adjourn it so that we can at least trial some drugs. These drugs do not work instantaneously. They can take three to four months to find the right combination so that you calm down a bit.

Now, this judgment came in the light of that. I am claiming I did not get – I did not get a trial at all. It was not fair – 69 days from the time he put it down for trial to the trial was not enough time for a litigant in person and, therefore, I am claiming that is – that is what I want to appeal against. Now, the fact I have got - - -

HIS HONOUR: Well, just a moment. You have no application in this Court seeking to challenge the orders of 16 July. Is that right?

MR NEST: I have just put in the special leave to appeal because I was told that you have to have an application in the Court before you can even come in here.

HIS HONOUR: Have you applied for special leave to appeal to this Court against the orders of - - -

MR NEST: Yes.

HIS HONOUR: Just listen to me.

MR NEST: Yes, your Honour.

HIS HONOUR: Have you applied for special leave to appeal to this Court against the orders of 16 July?

MR NEST: Well, I have – it says here that 20 – sorry, point 2 under the grounds, b), I have applied for the orders of 10 and 25 November – this is the confusing part for me. There was an order that has now been amended on the 10th – so that is what I tried to explain to Ms Marrone. If I had gone ahead and appealed within the time against the orders of the 16th and then later on, on the 10th that was all changed, the majority of it was changed, what would have happened then? I would suggest in the appeal court would have all been a bit confusing. So basically I am saying here in this document, the special leave to appeal, I am appealing against 10 and 25 November. That is the - - -

HIS HONOUR: Right. Now, the application is an application for special leave to appeal against the orders of 10 and 25 November. The orders of 10 November, you say impermissibly altered, as you put it to me, the goalposts. Is that right?

MR NEST: Yes, that is right. Yes, yes, and I was not there. Always remember I was not there to be able to defend her and all this happened behind my back and just to add this in - - -

HIS HONOUR: I do not think it happened behind your back.

MR NEST: Well, I will tell you – I will tell you how I found out that it was happening, that he had made the orders and it came home when I went to a shop who – I went to a shop to use my debit card attached to a line of credit that I had on this property at 28 – and it bounced. So I rang them up and they said “You’ve sold the place, have you?” and I said no, what is going on. I did not know what was happening, did some more investigations and apparently there had been a – transfer the property out of my name – what they call a conveyancing transaction for another day here.

I tried immediately to contact the Lands Title Office. I did not know what it was about. I tried to find out through the banks what the hell was going on and then they say we have got an order. I said what order. Mind you, I did not have any of this paperwork until after the event and that is when I slowly started to piece together what had happened. She had put in an affidavit on the 23rd – I think it was October from memory, which, then taking it to a registrar to sign on my behalf – I did not know any of this. She then gets that document, gives it to a conveyancer who then fills out all the forms and so it goes. That is how come I did not know what was going on.

As soon as I did find out what was going on I started to move – I tried, as I say, the LTO, I tried to see if they could put it on hold until I could get some more advice and so on. So as far as back to those - - -

HIS HONOUR: Let me again interrupt you and invite you to see if we can cut to the chase. You want me to make an order preventing the sheriff evicting you from this property – at the moment I think it is tomorrow. Is that right?

MR NEST: Correct.

HIS HONOUR: Why should I make that order?

MR NEST: Well, back to my - - -

HIS HONOUR: I understand that its execution will cause you very great inconvenience and in that sense cause you harm.

MR NEST: Yes.

HIS HONOUR: Why, though, should I interrupt the orders that were - - -

MR NEST: Well, because - - -

HIS HONOUR: Just listen to me a moment, please. Why should I interrupt the orders that were made by Justice Berman? Yes.

MR NEST: Okay, well, because I – well, I have got the special leave application. I have now got an appeal on foot. If they take over the property – or Mrs Nest takes over the property she could mortgage it, sell it and by the time I get into a court and put my case and win there will not be any property left. So, basically, that is what those cases talk about. They talk about preserving the property and, indeed, that is one of the things I ask for in the summons. I am referring to that rule in the High Court Rules to do with rule 8.07.2(a), (b) and (d). I just – I know what could happen. It could be catastrophic. If I can reverse this decision of Berman J it will be back to where it was before. I am asking for – I think I say if I am granted leave to appeal that the transaction be reversed because I am claiming that it was based on fraud of the affidavits put in by Mrs Nest getting this Court to bring about these orders.

HIS HONOUR: Is there any evidence or any material that suggests any threat by Mrs Nest to dissipate the assets, to mortgage it, dissipate it, gamble it away, and get rid of the value of the land. We are talking about land here.

MR NEST: Yes. Well, I have got – I put it – I think it is one of these other affidavits that I filed here. Could be in number 9 and it could be in number 7 and I - - -

HIS HONOUR: Well, you will have to tell me where it is, I am afraid. I am not conscious of reading that.

MR NEST: Okay, there were two affidavits that I filed. I think this application is before Judge Berman and - - -

HIS HONOUR: Well, I have only the affidavits you have filed in this Court. Is there any evidence in this Court - - -

MR NEST: Yes. Yes, there is.

HIS HONOUR: - - - of a threat to dissipate the asset?

MR NEST: Well, looking at the documents behind – you have got some documents behind which are numbered 1 to 10 and in there at number 7 and number 8 you have got two affidavits that were sworn by me which explain reasons for delay, doctor’s certificate – that is the first affidavit and information about doctors’ certificates, psychological treatment, the fact that I was undergoing various medical tests and the next one, which was filed on 24 November for the hearing of 25 November – what have we got here – this is where I found out what has happened this time, what has been going on, claiming there that the orders he made are not valid.

HIS HONOUR: Yes, what I am looking for is any evidence of a threat to dissipate or give away - - -

MR NEST: Yes, point 15 - - -

HIS HONOUR: Just wait a moment. I am sorry, there are not too many advantages in this job, but one is if I speak, you stay silent. Is there any evidence that would say that there is a threat to dissipate the property?

MR NEST: Okay, referring to the affidavit that is numbered 9 - 23/11/14 - - -

HIS HONOUR: Yes, what paragraph?

MR NEST: We are talking about page 2, and we are talking about point 15:

If my application were ignored, the [S] property would be sold and I would be made homeless with nowhere to live.

I was advised [the respondent] is to leave the country as soon as she gets hold of my property and sells it. Her papers provide no details of a fixed address and her undertaking as to damages would be worthless.

Her other affidavits suggest she will be losing her job.

The funds would not be available, should the decision/s of a Higher court reverse the 2 orders, as above.

So then just while we are here, at point 16 I go on to explain –

A similar situation occurred when I was declared bankrupt by - - -

HIS HONOUR: Yes, I have read that, I do not see its relevance. Yes.

MR NEST: Well, my point there is that – that if that had – if that had not been turned around, like I am hoping to turn this other one around, we would not be standing here today because there would be nothing to talk about, it would all be sold. So that is the importance of holding these things – holding the status quo so that I can get in there and turn it all around, which I am pretty - - -

HIS HONOUR: Well, let us just focus for a moment on this notion of turning it all around. There is an order of the Family Court that the assets of the marriage be divided in a particular proportion. Two alternative ways of achieving that division were provided for by the order. Is there to be any proposal about how that order or something like it is to be effected, Mr Nest?

MR NEST: Going back to that original hearing at the start of the year, I did not get a chance to put my – I had a whole lot of documents on file. I was told I could use those in the interlocutory hearings. When it come time to – actually, at the trial the first thing that happened was he said he was not going to have any regard to those. Now, they were all documents I had all pre-filled out and I said, “Well, why have I got to do it again, they are all there on the file, I want to use them and refer to them”. So that was one of the issues. He did not take that into account.

Another – the thing, I told you before, I was sick, I ended up getting sick, and I could not participate in the trial, so it all went on – it all went on without my knowledge at the end of the day and the first I found out about it was on the 16th, or just after, when I got the final judgment. Now, that is interesting, let me tell you about that. The final judgment comes out at something like nine o’clock in the morning, immediately, about 15 minutes later, another judgment came out. So they rescinded the first one, and the second one come out because it had errors in it. Right, so that was that.

And then we go on to the 10th and if we look at the transcript, which you do not have but I have got, this is not – Mrs Nest gives – her paperwork does not say there is an error, but it comes up in the transcript. Something like, “Berman says, I see there is an error here”. And so we have got three judgments, they all had errors in them. So I guess my point is that the whole concept of this trial and that justice was not done to me. As I said in my affidavit here, my mother put in like $150,000. He said it was a gift. It was not a gift at all. So that was not credited.

He did not look at my health issues under section 79 of the Family Law Act – it was not credited. He did not look at all the moneys I had saved everybody, the family, through various – there was something – you might have picked this up in the reasons. There was a will case involving my mother and my sister. Like, I saved, I reckon, $300,000 without exaggeration because that is what they were trying to claim, $300,000, so I saved that. That was not credited.

He mentions – he skirts over things, “He was involved in this, he was involved in that”, but there is no detail in it because I was not allowed to give evidence about it. The whole thing, as far as I am concerned, was a mess. I have seen how trials are supposed to be conducted and I was not given that chance and I want the chance to go before a higher court, show them on the transcript what happened and I am sure they will agree, yes, you did not get a chance, we had better rehear this for the sake of justice of the case.

So basically it has all come down to this, you know, funnelling, funnelling, funnelling, they want to get me out, we will make these orders and 65 – what was it – 60/45, whatever it was, is a gross – a gross under-computations of what I actually put into the relationship. I had my house for 40 years well before I even met her. It was freehold. I had $20,000 cash I put into it to do an extension. As I explained to this judge, I said, even if we had not met I was still going to do this extension.

I had an application just before the trial under what they call section 44 of the Family Law Act, which is basically I wanted him to hear that we had kept our properties separate and I wanted to put that to him to say, listen, this was the story. She had her property and I had my property and never the - - -

HIS HONOUR: Now, Mr Nest, I do not think I need any further persuasion of the fact that you feel that you have been done an injustice.

MR NEST: That is an understatement.

HIS HONOUR: I do not need any further persuasion of the fact that you have a lot to say in support of the proposition that you have been done an injustice. The immediate question I have to decide is more limited. The question I have to decide is: should I interrupt the execution of the orders that have been made by the Family Court and are presently not affected? Is there anything more you wish to say directed to that issue?

MR NEST: Okay, those orders come out of the hearing of the 25th. Okay? Now, I have got the transcript of that. I went through my – I went through my affidavit and basically he is just saying, yes, I hear you, [Mr Nest], blah, blah, blah, blah, blah, and then it was cut short, the hearing was cut short - look, I have got other things to do, I have to truncate – I think that is the word – I have to truncate the hearing, and that was the end of that.

Now, this was done on the telephone, by the way, both of us were on the phone, including the judge, and so that is where these orders came from of what – now, I did not even know he was going to make these orders. Application from Mrs Nest arrived on the morning of the hearing. Okay? This is the so-called eviction notice, or whatever you want to call it, on the day of the hearing. I did not have those documents served on me. Okay? So there is some discussion in the transcript where I say, well – he said, we have got this application for eviction, et cetera, et cetera. I said, well, what is that about? I said I cannot see it so you will have to tell me, and then he just read a little bit of the first part, so he did not read the whole lot. I did not still know what it was, and [Mrs Nest] wants you evicted.

And I said, well, that does not sound fair. You know, apparently there is rules to do with this, it is supposed to be done in a certain period of time, you just cannot front up on that day and say we want to boot him out, and apparently this is what happened. That is why these actual eviction orders came about in the first place. And then what happened was they go into the reading out the reasons. He starts the reasons, so “I have got to finish now, I have got another case here,” and he starts going on with his reasons. And I do not have them yet, but I know what they are.

And as he - the reason I said, well, that is not right, that is not correct. He did not really even know the facts or the history of the case, but then he goes on to make this – I think it is a warrant of execution or something like that – he goes on to make that. And then usually at the end of these things they say something like, “Have you got anything else to say?” No, it was cut, the phone was cut off dead, so I could not say anything or put anything on the transcript, and that is what happens with this particular judge, that is how he handles – has been handling me and I really object to that because I am a citizen of Australia and we are supposed to have, you know, people handle these things in a proper way, correct way, and at the end of the day we are supposed to get justice out of the whole thing.

So I am saying those orders of the 25th – that is why I am on appeal against them –they were made not properly by the rules, according to the law and I am sure an appeal to this Court will look at that as well and say, yes, that is not right, he should not have done that so therefore we will turn these over. I cannot do any of this thing – if you do not give me a stay tomorrow morning I am going to have to fight the sheriff off and I am not joking when I say that because I do not know - - -

HIS HONOUR: Well, you should not - - -

MR NEST: I have never been through any of this stuff - - -

HIS HONOUR: Just a moment, you should not – you hear what I am saying – you should not make threats of that kind. Do you understand - - -

MR NEST: I am not - - -

HIS HONOUR: Just a moment, do you understand me? You do not make threats of that kind.

MR NEST: That is the position I am in, I am afraid. That is the position. As I say, I have not got – I have not had a fair trial, I have not been dealt with properly by this particular judge and now he has ordered this – third parties, I think I mentioned it in here, in one of these affidavits here at number 9. At number 9 I am talking about – at point 11 – he has virtually given her a paper gun:

In particular, the alleged default order –

That is what it was –

10 November 2014 is equivalent to a “GUN”, sanctioning others to commit serious acts of violence, break and enter and or at worst, “KILL” me, a DSPensioner with various diseases and incapacities, well known to HH and [the respondent].

Now, I am not joking. If you look at his orders he says something like they could use any force necessary. Well, what does that mean? Why would you want to write that in if he is not intending that these other third parties to use force? So I am deadly – I am very anxious about this, extremely anxious. I do not know what is going to happen. I am not making any threat, but as far as I know, and if I read the law, okay I am the occupier of the house – I do not know what they are going to do or how they are going to go about it, but – you know, like I am claiming that this whole set of orders coming out of Berman from the start of – from the trial right the way through needs to be challenged and overturned and if I cannot have a base like my house, like I had before – I have got internet access there, I have got all my facilities – it is full of, you know, all this furniture and there is nowhere for me to go.

That would greatly impede me being able to continue on with my application before the Full Court and this Court here to do with the special leave. So I do not know if I can beg you or what, I do not know. You probably – I do not know. All I am saying is that I really need the stay so I

can get on with my other paperwork and start doing the process of turning this all around.

HIS HONOUR: Yes, thank you very much, Mr Nest. You may sit down.

On 8 December 2014, the applicant filed an application for special leave to appeal to this Court from the whole of the orders of Justice Berman of the Family Court of Australia made on 10 November 2014 and 25 November 2014. The two orders, the subject of that application, arise out of earlier orders Justice Berman had made on 16 July 2014 in intended final disposition of property settlement proceedings between the applicant and the respondent.

The first of the orders which is the subject of the application for special leave to appeal to this Court is an order that amended in various respects the orders which Justice Berman had earlier pronounced on 16 July 2014. The applicant would say that those orders went beyond – he would say far beyond – mere correction of slips or typographical or other clerical errors that may have been identified in the earlier orders of 16 July.

The second order which is the subject of the application for special leave (made on 25 November) was directed to the issue of a writ of possession of certain land being the property in which the applicant now lives.

The applicant informed me that he has filed on 8 December 2014 a notice of appeal appealing against at least the orders of 10 November 2014 to the Full Court of the Family Court of Australia. At least as I presently understand it, neither in this Court nor in the Family Court of Australia has the applicant made any challenge, whether by way of notice of appeal or application for leave to appeal out of time in respect of the orders that were made on 16 July 2014.

As I told the applicant, although he did not file the reasons for judgment of Justice Berman which related to the orders made on 16 July, I have taken the liberty of looking at those reasons in an attempt better to understand the nature of the issues that then were litigated and which the applicant would, if special leave to appeal were granted, seek to agitate in this Court. It may be noted that the primary judge, Justice Berman, described the proceedings in that court as having a long and complex history and as having commenced as long ago as September 2006.

At the risk of undue abbreviation, the nature of the orders that Justice Berman made in July 2014 was to provide that the applicant, within a specified period, pay to the solicitors for the respondent a fixed sum of money and that contemporaneously with payment of that sum, the respondent would do all things necessary and sign all documents as were required to transfer her interest in certain real property to the applicant.

Justice Berman by his orders further provided, however, that in default of the applicant paying the amount of money fixed by the first order in the time fixed by that order, the applicant should transfer to the respondent the property which is the subject of the present application, together with its improvements, and that contemporaneously with that transfer the respondent should pay to the applicant an amount of a little less than $90,000.

The applicant now applies for orders of this Court staying the execution of the writ of possession of the property which has issued and which, as things presently stand, will likely be executed at some time tomorrow. He submits that the proceedings which have been conducted in the Family Court have been conducted in a manner which he would criticise in a large number of ways and are proceedings which, he would submit, have worked considerable injustice to him.

The generality of the submissions which the applicant makes in that respect should not be permitted to obscure the fact that the orders of Justice Berman providing for property settlement between husband and wife are not the subject of application in this Court and are not the subject of appeal to the Full Court of the Family Court. Those orders presently stand unperformed. What the applicant now seeks is to intercept the execution of compulsory process that would lead to performance of the alternative course of action contemplated by the orders of Justice Berman.

This Court’s power to grant a stay of proceedings is undoubted. The principles governing the grant of a stay of proceedings are likewise not open to doubt. Many years ago Justice Brennan wrote in Jennings Constructions Limited v Burgundy Royale Investments Pty Limited (No 1) [1986] HCA 84; (1986) 161 CLR 681 that the Court has inherent jurisdiction to grant a stay of proceedings to preserve the subject matter of litigation, but as his Honour went on to point out, that is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted.

Justice Brennan referred to a number of matters which he identified as being material to the exercise of the Court’s discretion in exercising the “extraordinary jurisdiction to stay”. His Honour said, at [1986] HCA 84; (1986) 161 CLR 681 at 685 that:

In each case when the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.

The applicant seeks to found his claim to a stay in this case upon the essential proposition that if the respondent is given possession of the property in which he now lives, there is a real risk that the respondent would dissipate or otherwise dispose of that property. In this regard, he refers to and relies upon an affidavit which he swore and filed in the Family Court on 23 November 2014 in which he says, amongst other things, that “If my application were ignored, the [S] property would be sold and I would be made homeless with nowhere to live. I was advised”, he continues, the respondent “is to leave to country as soon as she gets hold of my property and sells it. Her papers provide no details of a fixed address and her undertaking as to damages would be worthless. Her other affidavits suggest she will be losing her job. The funds would not be available, should the decision/s of a Higher Court” reverse the orders which he would seek to challenge.

I am not at all persuaded that I should act on what is asserted in that paragraph as indicating any real or lively risk of threatened dissipation of the property. Even if I am wrong in treating that affidavit as not providing material from which a conclusion of threatened dissipation might be drawn, given that the property in question is realty, not moveable personalty, it is, it seems to me, not useful to proceed and would not be right to proceed on the proposition that there is a real or lively threat by the respondent to dissipate the proceeds of satisfaction of the order that was made by Justice Berman in July and which still, as I have previously noted, remains unchallenged.

In considering whether the applicant would enjoy any substantial prospect of succeeding in his application for special leave to appeal, it is especially relevant to note that, subject to the apparent lately taken step of filing a notice of appeal to the Full Court of the Family Court, the application for special leave proceeds on the premise that this Court would entertain an appeal by special leave against the first instance decision of a judge of the Family Court without there being consideration of the correctness of that judgment by the Full Court of the Family Court. I do not say that it is beyond the realms of all possibility that this Court would intervene in such a set of circumstances, but so far as I now can recall, I know of no instance of that occurring within the last 17 years of the work of the Court.

In my opinion, an application for special leave to appeal against orders of the kind now in issue, when they are made by a single judge of the Family Court without intermediate consideration by the Full Court of the Family Court, is highly unlikely.

In the end, the question in this case can be put quite starkly. Should the respondent be required to stand out of the fruits of the judgment which she obtained on 16 July 2014 and which is a judgment which remains unsatisfied and unchallenged? In my opinion, the applicant shows no sufficient reason to conclude that this Court should grant a stay. The application for stay is dismissed.

Adjourn the Court.

AT 3.55 PM THE MATTER WAS CONCLUDED