Aon Risk Services Australia Ltd v Australian National University

1. The Application in a Proceeding filed by the second and third respondents on 6 October 2025 is dismissed.
2. Costs are reserved.

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Vilas & Vilas has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These are reasons for decision determining an Application in a Proceeding filed by the B companies on 6 October 2025 to stay orders entered by me on Friday 3 October 2025, in respect of which I published my written reasons for decision in Vilas & Vilas (No 3) [2025] FedCFamC1F 705 at 9.00 am this morning, Tuesday 7 October 2025.
2. This decision should be read together with those published written reasons. I will not repeat what is in those written reasons and will adopt the same names.
3. The terms of the Application at paragraph [2] are:

That the further hearing of such proceedings be and is hereby stayed until the determination of the Notice of Appeal filed on 4 October 2025.

1. The Application is supported by an affidavit of Mr Kilian filed 6 October 2025 which relevantly says that leave to appeal has been filed and at [9]:
   1. If the court resumes proceedings on 7 October 2025 and no jurisdictional power is confirmed to exist on behalf of the Federal Circuit and Family Court then the court may make a serious error which will cause further costs and delays to a matter which is already 5 years in the list.
2. A Notice of Appeal seeking leave to appeal was filed today, 7 October 2025. That appeal relevantly pleads:
   1. That the Primary Judge in the proceedings below erred in dismissing the Application in a Proceeding of the Appellants filed 19 September, 2025 (the "AIP") and in finding (if he did) that:

(a) That there was one single justiciable controversy

(b) That the federal and non-federal issues were not severable (at least to the

extent that required the court to remit the Supreme Court proceedings

formerly transferred to the Court back to the Supreme Court for

determination)

(c) That the non-federal aspects of the proceedings were essential to the

determination of the adjustive proceedings as between the spouse parties

and were not anterior to such determination (the "essentiality")

(d) In failing to give any, or any adequate, reasons for the decision to dismiss

the Application in a Proceeding of the Appellants.

1. The primary judge erred by not determining the question of whether or not there was one justiciable controversy enlivening the use of an accrued jurisdiction from the outset and when the matter was transferred from the Supreme Court and thus failed to determine or make orders determining whether evidence given (and documents filed) were given (or filed) ultra vires noting that the Court raised this issue with the parties via email (that is whether or not there is or could be a retrospective aspect to the orders made by the primary judge)
2. Noting that these Grounds may be amended after the delivery of Reasons (see r 13.10).

1. At the commencement of the matter before me at 10.00 am I was told the appeal was listed for hearing of an application for expedition before a single Justice at 11.30am this morning. All parties asked that I wait for the determination of that application before hearing the stay application.
2. The application for expedition was dismissed. I am told by the parties they understand the application for leave to appeal, possibly dealing with the substantive appeal as to jurisdiction, will be heard in the usual course in late January 2026.
3. A decision would be expected, in the usual course, within the three-month time frame recommended by the Full Court. That means that the jurisdiction issue may be determined by April 2025.
4. The stay application was then pressed before me by the B companies commencing at about 12.30pm. It is opposed by the husband and the wife.
5. Properly understood the application is for a stay of the orders entered on 3 October 2025, and not for a stay of the proceedings, nor for a stay of the hearing, nor for an adjournment of the hearing.
6. The orders of 3 October 2025 dismissed the B companies' application in a proceeding putting jurisdiction in issue.
7. The finding on which the orders were entered, set out in the written reasons for decision, are that this court does have jurisdiction to hear and determine the State matters which are currently part-heard before me together with the matrimonial property cause.
8. A stay of those orders would mean that the question of jurisdiction is in issue, and must be treated as undetermined, so that no further step could be taken until that issue was resolved by the Full Court.
9. The context is, of course, that the matter is nine days part heard and due to resume today for three days, or however long it takes to conclude the evidence, with a further single day listed in late November to allow the preparation of written submissions before a day of oral closing submissions.
10. The effect of a stay of the orders would mean that the part-heard trial due to resume today would be, in effect, adjourned.
11. I accept that the relevant principles are as submitted by Senior Counsel for the B companies.
12. In Sheldon and Weir (No 4) [2010] FamCA 1214, her Honour, Ryan J, particularly at [39] set out the matters which have to be taken into account when determining an application for a stay, pending appeal, adopting what was said in the Full Court in Truong & Liu (Chen) (No. 2) [2008] FamCAFC 194:

1. These principles, both in the general law and in respect of parenting proceedings, are well settled (see The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Limited [1986] HCA 13; (1986) 160 CLR 220 at 230; Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685. Jennings Constructions Limited v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681; Clemett & Clemett [1980] FamCA 90; (1981) FLC 91-013; JRN & KEN v IEG & BLG [1998] HCATrans 263; (1998) 72 ALJR 1329 at 1332). The authorities stress the discretionary nature of the application which should be determined on its merits. Principles relevant to this matter included the following:

• the onus to establish a proper basis for the stay is on the applicant for the stay however it is not necessary for the applicant to demonstrate "special" or "exceptional" circumstances;
  • a person who has obtained a judgment is entitled to the benefit of that judgment;
  • the person who has obtained a judgment is entitled to presume the judgment is correct;
  • the mere filing of an appeal is insufficient to ground a stay;
  • the bona fides of the applicant;
  • a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
  • a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted - this will be a substantial factor in determining whether it will be appropriate to grant the stay;
  • some preliminary assessment of the strength of the proposed appeal - whether the appellant has an arguable case;
  • the desirability of limiting the frequency of any change in a child's living arrangements;
  • the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time; and
  • the best interests of the child the subject of the proceedings.

13. The starting point is that the question of jurisdiction has been heard and determined and is established.
14. I do not consider that merely because the issue is jurisdiction that affects the proper application of principle.
15. The decision is assumed to be correct, the husband and wife are entitled to the benefit of that decision, and the court is entitled to proceed on the basis of the correctness of the decision, unless and until an appellate court determines the decision was wrong.
16. The onus to establish a proper basis for the stay is on the B companies. I accept their submission that it is not necessary for the B companies to demonstrate "special" or "exceptional" circumstances, contrary to the submissions for the wife.
17. While the mere filing of the appeal is insufficient of itself to justify the stay, I accept the bona fides of the B companies that they say jurisdiction is in issue and that there may be an arguable appeal point.
18. While I have formed a view on the facts of this case, the extent to which this court should consider the accrual of jurisdiction is one on which a review of authorities shows that judicial officers sitting in the Full Court may disagree.
19. Nevertheless, the judgment presently stands and there is no risk the appeal will be rendered nugatory if a stay is not granted. Either this court does have jurisdiction, or this court does not have jurisdiction. If there is in fact no jurisdiction, then any final orders of the court sitting at first instance in the State matter will necessarily be set aside on appeal.
20. The decision must be fair to all parties. The husband and wife wish to proceed.
21. The B companies raise delay. If the proceeding conclude the taking of evidence this week, and the taking of submissions later this year there will be no delay to these proceedings, whether or not there is jurisdiction. If a stay is granted and the proceedings adjourned until after the hearing of the application for leave to appeal in January 2026, assuming there is jurisdiction there will be a significant further delay in the proceedings.
22. In terms of costs thrown away by sitting this week if there is no jurisdiction, there will be some, although some of them will have already been incurred, given that counsel will need to have prepared extensively for this week. On the other hand, if there is jurisdiction, additional costs will be incurred as counsel will need to prepare extensively again should the matter go over and not be heard for a year, and there will still be a further week or so to be listed.
23. The husband and wife say they are here and ready to conclude the evidence. They note that the B companies pro-offer no terms, such as paying for costs thrown away in respect of this week if there is jurisdiction, and that there is a toll on them if the matter is further delayed. In that they rely on Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 ("Aon").
24. Aon is a significant case, as I noted in my written reasons at [40]. The granting of a stay would result in an adjournment, and then if there is jurisdiction a listing of this matter in another week next year. That necessarily means, if that occurs, that another matter will not be listed that week, and there will be a cascading effect. I consider this a significant issue in relation to the proper use of court resources, which is also a relevant factor for consideration.
25. Having considered these matters, on balance, I am not satisfied the B companies have met their onus to establish a basis for a stay of the orders of 3 October 2025.
26. Accordingly, I dismiss the application in a proceeding filed 6 October 2025 and reserve the question of costs to a later date.

I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith.