What happened

The decision is Spencer & Spencer (No. 4) [2020] FamCAFC 254, delivered by Kent J on 9 October 2020. The material supplied begins with a heading referring to Jennings Construction Limited v Burgundy Royale Investments Pty Ltd, but that is a cited authority, not the case being decided. The judgment under analysis is Spencer & Spencer (No. 4).

On 12 June 2020, a Full Court of the Family Court of Australia dismissed Ms Spencer's application for leave to appeal from orders of the Family Court of Western Australia, and dismissed three other applications she had filed. The Full Court also ordered her to pay Mr Spencer's costs of the leave application in a fixed sum of $9,022.94. Those events and the amount are recorded at [1]-[2].

Ms Spencer then pursued proceedings in the High Court of Australia. She sought an extension of time to apply for special leave to appeal from the Full Court's 12 June orders and instituted proceedings seeking prerogative relief in respect of those orders. On 15 July 2020, she filed an application in the appeal seeking, among other things, a stay of enforcement of the costs order while the High Court proceedings were resolved [3]-[4].

The application was referred under r 22.37(b)(ii) of the Family Law Rules 2004 (Cth) [5]. The judgment identifies that rule as the basis for the referral but does not set out its text or explain its broader operation. Mr Spencer told the Appeals Registrar that he did not wish to be heard and filed no written submissions [6].

Kent J granted a stay of enforcement of the costs order, pending determination by the High Court of the extension-of-time application, the special-leave application, any appeal if special leave were granted, and the application for prerogative relief. The judge dismissed the balance of Ms Spencer's application [orders (1)-(2), [16]].

Why the court decided this way

Kent J began by emphasising the exceptional character of the relevant stay jurisdiction. The judgment says that a stay pending an application for special leave to the High Court is “extraordinary”. It adds that a stay where prerogative relief is sought is “seldom invoked and rarely exercised” [7]. These characterisations were supported by references to Jennings Construction and Re Marks respectively. The judgment does not set out the facts or detailed reasoning of either authority.

The decision turned on the circumstances of this application and the discretionary balance. The judge considered whether a stay was needed to preserve the subject matter of the litigation and assessed the applicant's prospects in the High Court proceedings. The judge concluded that a stay did not appear necessary for preservation purposes and that Ms Spencer had no substantial prospect of success in either the special-leave application or the prerogative-relief proceedings [9]. Those assessments did not end the inquiry.

The judge gave particular weight to the balance of convenience. The amount of costs was described as relatively modest. Mr Spencer was not actively opposing the application. Ms Spencer had deposed to her incapacity to pay the costs order [8]. Kent J reasoned that, if she succeeded in obtaining special leave and then succeeded on appeal, or obtained prerogative relief, it was reasonable to assume that the costs order might be set aside [10]. On those considerations, the judge decided that the balance of convenience predominated sufficiently to permit a stay, while expressing “considerable hesitation” [11].

The decision is therefore not a finding that Ms Spencer's High Court proceedings had substantial prospects, nor a ruling that the costs order was invalid. The order temporarily suspended enforcement while the specified High Court proceedings were determined. Its basis, as expressed in the reasons, was the discretionary balance in this particular application.

The judge separately addressed two alternative requests. A proposed “financial payment plan” was not appropriately determined in the stay application: any such mechanism would be for a judicial officer considering discretion in necessary enforcement proceedings [14]. The request that the costs be “taxed and/or disclosed” was also rejected. The Full Court had fixed the costs sum, and Ms Spencer could not use this application to revisit that determination [15].

Before and after state of the law

The judgment does not provide a comprehensive account of the law of stays, nor does it state that it is changing or clarifying a general legal test. Its express legal characterisations are limited: a stay pending special leave is extraordinary, while a stay in the context of an application for prerogative relief is seldom invoked and rarely exercised [7]. It then applies discretionary considerations to the circumstances before it.

Before this decision, the immediate procedural position described in the reasons was that the Full Court's costs order remained in place, and Ms Spencer had asked for enforcement to be stayed while High Court proceedings were pending [2]-[4]. After the decision, enforcement was stayed for the period specified in the order. The order did not itself set aside the costs order or alter the Full Court's fixed amount.

The case-specific treatment of the balance of convenience is important. The judge expressly considered the modest amount, the respondent's non-opposition, and the applicant's stated inability to pay [8]. Those factors were weighed alongside the judge's views that preservation did not require a stay and that the High Court prospects were not substantial [9]-[10]. The reasons support the conclusion that the balance of convenience predominated on these facts. They do not establish that any one factor, such as non-opposition or inability to pay, will necessarily determine another stay application.

The cited authorities are identified as examples supporting the court's descriptions of the exceptional or rarely exercised jurisdiction. The supplied judgment does not reproduce their reasoning, so this analysis cannot give a fuller account of their principles. Nor does the judgment discuss a general test in sufficient detail to state how all stay applications must be decided.

Key passages with plain-English translation

At [7], Kent J says the jurisdiction to grant a stay pending the outcome of an application for special leave “is extraordinary”. In plain English, the judge treated this type of pause in enforcement as exceptional rather than routine. The same paragraph describes a stay connected with prerogative relief as “seldom invoked and rarely exercised”. Those are the judgment's characterisations, not a full exposition of the cited authorities.

At [8], the judge identifies the practical considerations that mattered to the discretionary balance: the costs amount was relatively modest, the respondent chose not to oppose the application, and the applicant had given evidence that she could not pay. In plain English, the court considered both the scale of the immediate financial burden and the parties' positions about the application.

At [9], the judge states that a stay did not appear necessary to preserve the subject matter of the litigation, and that the applicant did not have substantial prospects in the High Court matters. In plain English, the court did not consider that the case needed to be paused to protect the dispute itself, and it was not persuaded by the materials that the High Court proceedings had substantial prospects.

At [10], the judge explains why a stay could nevertheless be granted: if the applicant ultimately succeeded in the High Court proceedings, the costs order might be set aside. The judge said it was “only by predominating the balance of convenience” that a stay could legitimately be contemplated. In plain English, the stay depended on the practical fairness of temporarily preventing enforcement, not on a finding that the applicant was likely to succeed.

At [11], Kent J grants the stay “not without considerable hesitation”. That qualification conveys the judge's reluctance and reinforces the case-specific nature of the decision. It should not be read as a general rule that a modest costs order or a non-opposed application requires a stay.

At [14]-[15], the judge rejects the alternative requests. A payment arrangement would fall for consideration in any necessary enforcement proceedings, while the fixed costs amount could not be reopened in this application. In plain English, the stay application was not a vehicle for negotiating a payment plan or challenging the Full Court's costs assessment.

What fact patterns trigger this precedent

The decision is most directly relevant to an application to pause enforcement of a costs order while an unsuccessful litigant pursues High Court proceedings concerning the underlying appellate orders. The factual setting included an application for an extension of time to seek special leave, a special-leave application, a possible appeal if leave were granted, and an application for prerogative relief [3], [orders (1)(a)-(d)].

The circumstances Kent J expressly identified included a relatively modest fixed costs sum, the respondent's decision not to participate, and evidence from the applicant that she could not pay [8]. The judge also considered the absence of a perceived need to preserve the subject matter and an assessment that the High Court proceedings lacked substantial prospects [9]. The stay was nonetheless granted because the judge found that the balance of convenience predominated [10]-[11].

The decision does not establish that these factors are sufficient in every case. It supplies a fact-specific example of their combined consideration. It also does not decide applications where the respondent opposes the stay, the amount is materially different, the applicant has not given evidence of inability to pay, or the underlying High Court proceedings have a different procedural character. Those situations are not resolved by the text of this judgment.

The alternative requests matter as well. A request to arrange instalments was treated as an issue for any necessary enforcement proceeding, rather than a matter properly resolved in the stay application [14]. A request to revisit a fixed costs amount was rejected because that amount had already been determined by the Full Court [15]. The decision therefore distinguishes the temporary question of enforcement from challenges to the costs determination itself.

How later courts have treated it

The supplied judgment contains no discussion of later decisions applying, distinguishing, following, or criticising Spencer & Spencer (No. 4). Its delivery date is 9 October 2020, and the text identifies only authorities and decisions that preceded or formed part of the procedural history described in the reasons. Later treatment cannot be established from the material provided.

The cases expressly named are Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681, cited as an example concerning the extraordinary jurisdiction to grant a stay pending special leave [7], and Re Marks and Federated Ironworkers' Association; Ex parte Australian Building Construction Employees and Builders' Labourers' Federation (1981) 34 ALR 208, cited for the description of the prerogative-relief jurisdiction as seldom invoked and rarely exercised [7]. The judgment also refers to Spencer & Spencer (No 3) [2020] FamCAFC 145 as the earlier Full Court decision relevant to the orders and costs at issue [1]-[2].

Those citations show the authorities Kent J relied on or referred to in this decision. They do not, by themselves, establish how later courts have treated this judgment. A current assessment of subsequent treatment would require later judgments or a separate citator source, neither of which is included in the supplied material.

Still-open questions

The reasons do not set out a comprehensive test for deciding applications to stay costs enforcement pending High Court proceedings. They describe the relevant jurisdictions as extraordinary or rarely exercised, then explain the considerations used in this particular discretionary decision [7]-[11]. The judgment leaves open how those considerations would be weighed in different circumstances.

The decision also does not explain the detailed principles in Jennings Construction or Re Marks. It cites them as examples supporting its characterisations of the relevant jurisdiction [7]. Their full reasoning cannot be reconstructed from the references in this judgment alone.

The reasons do not address what evidence would ordinarily be sufficient to establish inability to pay, how the court might evaluate a contested financial account, or how a different costs amount might affect the balance. Here, the respondent did not oppose the application and the judge described the sum as relatively modest [6], [8]. The judgment does not determine how the balance would differ if those features changed.

Finally, the order specifies that the stay lasts pending determination of the listed High Court matters [orders (1)(a)-(d)]. The reasons do not set out what would happen in every possible procedural outcome beyond observing that success in the High Court could mean the costs order might be set aside [10]. Those limits reflect the decision's particular record and the questions actually resolved.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.