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austlii:cth/HCASJ/2024/15
procedural. Application for a stay refused. The application was determined without an oral hearing under r 13.03.1 and disposed of under r 13.04 of the High Court Rules 2004 (Cth) ([14]).
3 cited instruments linked from this judgment.
Ms Monfort asked the High Court to pause orders and proceedings concerning Property B while she pursued special leave to appeal. The judge recognised the potentially serious effect of a sale on her and took account of her efforts to seek a stay below. However, a stay pending special leave is exceptional, and the judge considered the prospects of special leave insufficient to justify the requested pause. The stay was refused. The judge did not decide the merits of the proposed appeal or resolve a separate question about the jurisdictional character of the lower court's leave decision.
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1,956 words · generated 03/10/2026
This is a short interlocutory ruling by Edelman J of the High Court of Australia, not a decision determining Ms Monfort’s proposed appeal. The question before the Court was whether to pause orders and proceedings affecting Property B while she pursued an amended application for special leave to appeal. The application for a stay was refused on 16 April 2024 ([14]).
The background began with final property adjustment orders made on 13 October 2017. Those orders allocated the property division 75 per cent to Ms Monfort and 25 per cent to her husband. Part of the arrangement required the husband to transfer his interest in Property B to Ms Monfort, who was to release him from liabilities connected with the property, including the mortgage. Lawyers were appointed as trustees for sale if Ms Monfort defaulted ([2]).
The orders were varied by consent on 1 February 2019. The variation replaced the trustee for sale and made further provision about the trustee’s costs and outlays, including costs arising if a party did not follow the trustee’s directions ([4]). The judgment records that the 2017 orders had also been appealed, and that appeal was dismissed ([4]).
In January 2024, Howard J made orders that included vexatious proceedings orders under Pt XIB of the Family Law Act 1975 (Cth). Further orders made on 1 March 2024, amended on 20 March, declared Ms Monfort in default of specified orders from 2017. They required her to deliver vacant possession of Property B to the trustee for sale within 45 days, and addressed matters including caveats and sale ([5]).
Ms Monfort sought leave to appeal from Howard J’s decision. On 8 March 2024, the Federal Circuit and Family Court of Australia (Division 1) dismissed that application. The court was not satisfied that the proposed appeal was not vexatious and concluded that Ms Monfort had not demonstrated that it would be brought on reasonable grounds ([6]). Her amended special leave application in the High Court alleged several errors, including errors about the source and scope of power for the trustee-for-sale orders, procedural fairness, and apprehended bias ([7]). Edelman J did not determine whether those proposed grounds were correct.
Ms Monfort then sought a broad set of interim orders, including stays of the January, March and later orders, future proceedings brought by the trustee for sale, any writ of possession, and proceedings in the Appeals Division ([10]). She said Property B was at immediate risk and that the trustee had required vacant possession by 15 April 2024 ([3]). She also described the consequences of losing her home as especially serious given her age and health ([8], [13]).
The governing approach in the judgment is that a stay pending special leave is an exceptional remedy. Edelman J quoted Brennan J’s explanation in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 at 685. The considerations identified there include whether a stay is needed to preserve the subject matter, whether there is a substantial prospect of special leave, whether the applicant failed to take necessary steps to seek a stay below, whether a stay would cause loss to the respondent, and where the balance of convenience lies ([11]).
Edelman J did not treat the asserted personal consequences as irrelevant. His Honour expressly took account of the serious effect Ms Monfort said a sale would have on her. The judgment also set aside any concern about delay in approaching the High Court: the short delay after her applications below was “readily explicable” by an unrepresented litigant preparing materials for the High Court application ([13]). This is significant because the reasons do not say that the application failed because of delay or because the consequences for Ms Monfort were unimportant.
The decisive assessment was instead the prospect of special leave, considered together with the balance of convenience. Edelman J concluded that the prospect was “neither substantial nor sufficient” to justify granting the interlocutory stay ([13]). The application was therefore refused ([14]). The ruling does not explain the merits of each proposed ground in detail, nor does it determine the special leave application. It decides only that the threshold for the interim relief sought was not met on the material before the Court.
A separate jurisdictional issue was identified but deliberately left open. The lower court had required Ms Monfort to apply for leave to institute an appeal under ss 102QE(2) and 102Q(1) of the Family Law Act 1975 (Cth). Edelman J observed that there might be a question whether this application involved reconsideration of a previously determined matter and was therefore appellate in character. If it was an exercise of original jurisdiction, s 55(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) would prohibit a direct appeal to the High Court from that judgment, and a special leave application might be an abuse of process ([9]). His Honour said it was unnecessary to decide that question because the stay application could be refused on other grounds.
The judgment does not purport to change the law governing stays. It applies the exceptional-circumstances approach and the considerations quoted from Jennings Construction ([11]). Its principal contribution is case-specific: it illustrates that serious claimed consequences of an order do not, by themselves, determine whether a stay will be granted. The Court considered those consequences, but also assessed the prospect of special leave and the balance of convenience ([13]).
The reasons do not make a final finding about the validity of the trustee-for-sale arrangements, the source of power for the family law orders, the alleged denial of procedural fairness, or the allegations of apprehended bias. Those matters appear among Ms Monfort’s proposed grounds and submissions ([7]-[8]), but the ruling does not decide them. Nor does it determine whether Ms Monfort’s special leave application was jurisdictionally available. That question was expressly left undecided ([9]).
Accordingly, the “after” position established by this judgment is narrow: Ms Monfort’s requested interim stay was refused, and the orders below were not paused by this High Court application. The decision should not be read as resolving the substantive property dispute or endorsing every aspect of the orders below. It also does not establish a general rule that a stay is unavailable where a home is at risk. The reasons identify a weighing exercise, and report the result on the particular stay application before Edelman J.
At [11], Edelman J states: “This Court will only exercise its jurisdiction to order a stay of proceedings pending special leave in exceptional circumstances.” In plain English, a person seeking to pause proceedings while asking for permission to appeal faces a demanding threshold. The judgment then identifies the factors relevant to that assessment by quoting Jennings Construction: preservation of the subject matter, prospects of special leave, steps taken to obtain a stay below, potential loss to the respondent, and the balance of convenience.
At [13], the reasons record that the Court took account of the serious impact Ms Monfort said a sale would have on her. They also record that the short delay in applying to the High Court was readily explained by the preparation required of an unrepresented litigant. In plain English, the judge acknowledged both the personal stakes and the procedural context rather than treating either as a reason to reject the application automatically.
The same paragraph gives the decisive assessment: “the prospect of a grant of special leave is neither substantial nor sufficient” to justify a stay on the balance of convenience. In plain English, even after considering the consequences for Ms Monfort, the judge concluded that the case for pausing the orders was not strong enough when measured against the relevant considerations.
At [9], the judgment says it “may” be necessary to consider whether the lower court’s leave decision was made in original or appellate jurisdiction, but that it was unnecessary to do so. In plain English, the High Court noticed a potentially important route-of-appeal question, but did not decide it because the stay application failed on another basis. This qualification matters: the ruling should not be cited as having conclusively determined that jurisdictional issue.
The decision is most directly relevant to applications asking the High Court to stay proceedings or orders while a special leave application is pending. Its fact pattern involved property orders, a claimed imminent loss of possession, an unrepresented applicant, prior unsuccessful applications for a stay below, and an asserted risk that a home would be sold ([3], [12]-[13]).
The judgment is also relevant where an applicant seeks broad interim relief, such as stopping several sets of orders, future proceedings, or enforcement steps. The breadth of the relief sought is apparent from the requested orders at [10]. But Edelman J did not make a general ruling about whether each type of order could independently be stayed. The case’s use is therefore strongest for the stated approach to the stay discretion, not for any specific proposition about possession orders, caveats, trustee powers, or family law property settlements.
A further potentially relevant fact pattern is one where the proposed appeal route depends on whether a lower-court leave decision was made in original or appellate jurisdiction. The judgment flags the issue and identifies s 55(1)(b), but it does not resolve the classification question ([9]). A practitioner relying on this aspect should be careful to distinguish an issue noticed but left undecided from a rule actually applied to dispose of the matter.
The supplied judgment contains no discussion of later judicial treatment of In the matter of an application by Ms Monfort for special leave to appeal [2024] HCASJ 15. The decision itself refers to Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd for the factors governing a stay, and to Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203-204 [12]-[14] in identifying a possible jurisdictional question ([9], [11]).
No conclusion about subsequent application, distinction, approval, or criticism can be drawn from the judgment text provided. For professional research purposes, later treatment would require checking subsequent judgments and the relevant procedural rules and legislation. The decision’s own account should not be treated as proof of how later courts have applied it.
The first open question is whether the lower court’s decision refusing leave to institute the proposed appeal was made in original or appellate jurisdiction. Edelman J explained the possible consequences under s 55(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth), but did not decide the issue ([9]).
The second is the merits of Ms Monfort’s proposed special leave grounds. The judgment summarises allegations concerning the character of later orders, the use of s 80(1)(e) of the Family Law Act 1975 (Cth), third-party trustee powers and costs, procedural fairness, and apprehended bias ([7]). It does not determine whether any ground is made out.
The third is the substantive status and operation of the 2017 and 2019 orders, including the alleged default and the trustee’s role. The stay ruling recounts the relevant order history but does not resolve Ms Monfort’s challenges to those arrangements ([2], [4]-[5], [8]).
Finally, the judgment does not determine the special leave application itself, the ultimate outcome of any appeal, or whether the sale or possession process would proceed in a particular way. Its operative result is confined to refusing the requested stay on 16 April 2024 ([14]).
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
EDELMAN J
IN THE MATTER OF AN APPLICATION BY MS MONFORT FOR SPECIAL LEAVE TO APPEAL
[2024] HCASJ 15
Date of Judgment: 16 April 2024
B22 of 2024
ORDER
Representation
The applicant is unrepresented
EDELMAN J. This application is brought today by Ms Monfort (a pseudonym) under r 8.07.1 of the High Court Rules 2004 (Cth) for "a stay of proceedings in, and orders made by, the Federal Circuit and Family Court of Australia [(Division 1)]" pending determination of her amended application for special leave to appeal from the judgment of the Federal Circuit and Family Court of Australia (Aldridge, Austin and Harper JJ).
On 13 October 2017, final property adjustment orders were made in the Federal Circuit Court of Australia providing for property to be divided between Ms Monfort (75 per cent) and her husband (25 per cent) ("the 2017 Orders"). The division of property was to be achieved in part by the husband transferring his interest in "Property B" to Ms Monfort and for Ms Monfort to release her husband from any liability in respect of the property, including the mortgage. Lawyers were appointed trustees for the sale of Property B in the event of default by Ms Monfort.1
Property B is the central subject of Ms Monfort's concern in this stay application. She describes Property B as being "at immediate risk" and says that she has been required by the trustee for sale to deliver up vacant possession by today, Monday 15 April 2024.
The 2017 Orders also included liberty to apply. An appeal from those orders was dismissed. On 1 February 2019, the 2017 Orders were varied by consent, substituting a new trustee for sale and "including an express reference to s 80(1)(e) of the [Family Law Act 1975 (Cth)], and ... making some provision for the payment of such trustee’s costs and outlays, including costs incurred if a party failed to follow [the new trustee's] directions" ("the 2019 Orders").2
The judgment at first instance to which Ms Monfort's application for special leave relates was given on 25 January 2024 by a single judge (Howard J) of the Federal Circuit and Family Court of Australia (Division 1). The orders made by Howard J included vexatious proceedings orders under Pt XIB of the Family Law Act 1975 (Cth). On 1 March 2024, Howard J made further orders (with some amendments on 20 March 2024) declaring Ms Monfort to be in default of orders 13, 14 and 15 of the 2017 Orders. The 1 March 2024 orders also included an order requiring Ms Monfort to deliver to the trustee vacant possession of Property B within 45 days from the date of the orders and orders for various other matters, including the removal of caveats and the sale of Property B.
Ms Monfort sought leave to appeal from the decision of Howard J. The Federal Circuit and Family Court of Australia (Division 1) relied upon s 102QE(2) of the Family Law Act 1975 (Cth), read with the definition of "institute" in s 102Q(1), requiring Ms Monfort to "apply to the court for leave" to institute an appeal.3 The Federal Circuit and Family Court of Australia (Division 1) heard that application ex parte and on the papers. On 8 March 2024, that Court delivered reasons for decision addressing Ms Monfort's grounds of appeal and concluding that their Honours were "not satisfied that the proposed appeal is not vexatious" and that Ms Monfort "has not demonstrated her proposed appeal would be brought on reasonable grounds".4 The application for leave to bring the proposed appeal was dismissed.
The amended special leave application filed on 10 April 2024 in this Court by Ms Monfort challenges those orders. Ms Monfort has six proposed grounds of appeal if special leave were granted. In summary, she alleges errors of law by the Federal Circuit and Family Court of Australia (Division 1) in: "[h]olding that orders made after the final orders made on 13 October 2017 were to modify the machinery provisions and to enforce rights or entitlements already determined"; "[h]olding that orders made after the final orders were to enforce rights or entitlements already determined where no application had been made in reliance on that source of power"; "[h]olding that an express reference to s 80(1)(e) of the Act was a valid source of power to make a third party order appointing a stranger 'trustee for sale'"; "[h]olding that there was a power to make a third party order and to order costs in favour of a third party and make provision for a third party's costs and outlays from the property settlement after the s 79 primary power had been exercised and exhausted on 13 October 2017"; "[n]ot concluding that the applicant was denied procedural fairness when the primary court found the applicant was vexatious"; and "[n]ot identifying from the Reasons for Judgment that a hypothetical observer would have had a reasonable apprehension of bias once the primary judge had heard counsel for the 'trustee for sale' read into the court record the precise terms of her client's settlement offer".
Ms Monfort's special leave submissions in her amended application for special leave are not easy to follow. Without attempting to summarise the entirety of her submissions, among the issues that she raises are the following. She says that there is a "question", not considered in the courts below, "as to the validity of delegating power to a third party 'trustee for sale' to exercise discretion to make decisions affecting the property and final outcome of a s 79 application". Ms Monfort also asserts that there is a conflict between "the rights of the Trustee for sale to obtain financial reward from his appointment and [Ms Monfort's] legal and equitable property rights". She says that a trustee for sale "might apply only to an appointment under [Queensland] legislation" and that the registration of the trustee for sale prevented her from completing final orders 13, 14, 15 and 16 immediately upon the appointment of the trustee. She refers to other circumstances of substantial injustice to her and identifies numerous alleged errors or perceived problems with the "2024 orders" and makes allegations of apprehended bias. She claims that she is able to refinance in order to "receive the transfer" of Property B and she refers to her age, medical conditions and connection with Property B.
There may be an issue as to whether Ms Monfort's application for "leave to institute proceedings"5 by "making ... an application .... necessary to start an appeal"6 involved the reconsideration of any matter previously determined7 and was, in that sense, in appellate jurisdiction. If the application for leave to institute proceedings was in the original jurisdiction of the Federal Circuit and Family Court of Australia (Division 1), then Ms Monfort's special leave application would be prohibited by s 55(1)(b) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) which provides that an appeal "must not be brought directly to the High Court from ... a judgment of the Federal Circuit and Family Court of Australia (Division 1) in the exercise of its original jurisdiction". Consequently, an application for special leave to bring such an appeal would be an abuse of process. It is, however, unnecessary to consider this issue because the application for a stay must be refused.
The interlocutory orders for a stay that Ms Monfort seeks in this application are as follows:
"1. A stay of the whole of the Orders made by the Federal Circuit and Family Court by Hon. Justice Howard on 25 January 2024 in BRC4638/2014;
A stay of the whole of the Orders made by the Federal Circuit and Family Court by Hon. Justice Howard on 1 March 2024 as amended on 20 March 2024 in BRC4638/2014;
A stay of the whole of the Orders made by the Federal Circuit and Family Court by Hon. Justice Howard on 25 March 2024 in BRC4638/2014;
A stay of all future proceedings in BRC4638/2014 which could be brought by the trustee for sale under the liberty to apply provisions granted by the above orders;
A stay of any writ of possession which has been issued or which could be issued granted by the above orders in BRC 4638/2014;
A stay of all proceedings in NAA 85 of 2024 in the Appeals Division of the Federal Circuit and Family Court of Australia."
This Court will only exercise its jurisdiction to order a stay of proceedings pending special leave in exceptional circumstances. As Brennan J explained:8
"In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion. 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."
Ms Monfort says in her affidavit evidence that on 8 March 2024 and 22 March 2024 she applied for leave to institute a proceeding "to seek a stay of property orders made to give effect to the judgment given on 25 January 2024" but leave was refused in both applications by the Federal Circuit and Family Court of Australia (Division 1). She says that she has also filed three applications for leave to appeal since 16 February 2024 and that one of those applications is listed for hearing tomorrow, 16 April 2024.
I put to one side any delay by Ms Monfort in seeking a stay in this Court. The short period of delay since her applications to the Federal Circuit and Family Court of Australia (Division 1) for a stay is readily explicable by an unrepresented litigant preparing the materials for the application in this Court. I also take into account the serious effect that Ms Monfort says that a sale of Property B would have on her, including her description in her amended application for special leave that she "will lose her home at a time in life which due to health and age, will cause a position from which there is little chance of recovery" and other effects of that consequence on her. Nevertheless, the prospect of a grant of special leave is neither substantial nor sufficient such that in an assessment of the balance of convenience the interlocutory stay orders sought by Ms Monfort should not be made.
The application must be refused. It is appropriate that the application be determined under r 13.03.1 of the High Court Rules 2004 (Cth) without an oral hearing and disposed of under r 13.04.
See Monfort [2024] FedCFamC1A 23 at [3]. ↩
Monfort [2024] FedCFamC1A 23 at [12]. ↩
Monfort [2024] FedCFamC1A 23 at [6]-[7], [13]-[21]. ↩
Monfort [2024] FedCFamC1A 23 at [41]. ↩
Family Law Act 1975 (Cth), s 102QE(2). ↩
Family Law Act 1975 (Cth), s 102Q(1). ↩
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203-204 [12]-[14]. ↩
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 at 685. ↩
(2000) 203 CLR 194
(1986) 161 CLR 681
Application for a stay refused. The application was determined without an oral hearing under r 13.03.1 and disposed of under r 13.04 of the High Court Rules 2004 (Cth) ([14]).