Abbasi & Karimi
[2023] FedCFamC1A 79
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Abbasi & Karimi [2023] FedCFamC1A 79
Appeal from: Abbasi & Karimi [2023] FedCFamC2F 45 Appeal number: NAA 29 of 2023 File number: SYC 2360 of 2017 Judgment of: AUSTIN J Date of judgment: 23 May 2023 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Where the appellant seeks seven interlocutory relief orders in the appeal – Application to vacate the appeal hearing – Where the wife applied to Legal Aid NSW for a grant of legal aid in the appeal hearing – Where this application did not meet the organisation’s merit test – Where the wife has filed a fresh application with Legal Aid NSW and the Court finds it likely the application will be refused – Where the Court is not satisfied that section 57 of the Legal Aid Commission Act 1979 (NSW) requires the appeal hearing to be adjourned – Application for an extension of time within which the parties may file their Summary of Argument and List of Authorities – Where the parties have already filed within the time ordered by the appeal registrar – Application to adduce further evidence – Where the application does not meet the recognised criteria for admission – Where the appellant abandoned her application to issue subpoena in the appeal – Application dismissed Legislation: Family Law Act 1975 (Cth) s 79A
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68
Legal Aid Commission Act 1979 (NSW) s 57,
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.39
Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67 Number of paragraphs: 33 Date of hearing: 23 May 2023 Place: Newcastle (via Microsoft Teams) Solicitor for the Appellant: Peter Jurd Lawyer Counsel for the Respondent: Mr Michael Drysdale (KC) Solicitor for the Respondent: Mills Oakley ORDERS
NAA 29 of 2023
SYC 2360 of 2017FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS ABBASI
Appellant
AND: MR KARIMI
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
23 may 2023
THE COURT ORDERS THAT:
1.The Amended Application in an Appeal filed on 16 May 2023 is dismissed.
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).
IT IS NOTED that publication of this judgment by this Court under a pseudonym Abbasi & Karimi has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
This appeal lies from orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 24 January 2023 dismissing the wife’s application for financial relief against the husband.
The appeal is listed for hearing before me on Thursday 1 June 2023.
On 26 April 2023, the wife filed an Application in an Appeal seeking interlocutory relief in the appeal. The application was listed for hearing ahead of the appeal on Tuesday 23 May 2023 because the orders sought might affect the conduct of the appeal.
On 16 May 2023, just before the interlocutory application was heard, the wife filed an Amended Application in an Appeal seeking these orders:
(a)That the appeal hearing on 1 June 2023 be vacated (Order 1);
(b)The stay of the appeal proceedings until the wife’s application for a grant of legal aid is determined (Order 2);
(c)Leave to adduce further evidence in the appeal (Order 3);
(d)Leave to issue subpoenas in the appeal (Order 4);
(e)Extensions of time within which the parties may file their Summaries of Argument in the appeal (Orders 5 and 6); and
(f)Any further orders the Court deems appropriate (Order 7).
In support of the amended application, the wife relied upon her two affidavits filed on 10 May 2023 and 22 May 2023.
The husband opposed all applications. He relied upon his affidavit sworn or affirmed on 20 May 2023 (but not yet filed as it was only lodged for filing yesterday).
Proposed Orders 1 and 2
The judgment under appeal was delivered on 24 January 2023 and the appeal was filed on 20 February 2023.
The wife was legally-aided at first instance and unsuccessfully applied for an extension of legal aid to fund the appeal. The wife deposed that she afterwards lodged another application for legal aid on 20 April 2023, but did not give any evidence to explain why she delayed for two months after the appeal was filed. Inferentially, it is because she was not formally notified of the rejection of her application to extend the original grant of legal aid until 12 April 2023.
In any event, she deposed to being told by staff at Legal Aid NSW that her current application will not be determined for several more weeks, which will be after the scheduled appeal hearing. Hence her application to adjourn the hearing until after the application is determined.
The wife’s solicitor contended these adjournment and stay applications are governed by s 57 of the Legal Aid Commission Act 1979 (NSW) (“the State Act”), but the proposition is not so straightforward. That provision only applies in situations where an appeal is made, or is intended to be made, to the Legal Aid Review Committee from the refusal of an application for the grant of legal aid. Presently, the wife is still waiting for her fresh application for legal aid to be processed. It has not yet been refused, yet she deposed to her intention to appeal any decision refusing the application to the Legal Aid Review Committee, engaging s 57(a)(ii) of the State Act.
However, on the evidence adduced by the wife, she was informed by Legal Aid NSW that her original extension application did not satisfy the merit test and that, under existing policies and guidelines, legal aid is not available “for matters of this nature”. She was also informed that funding for the proposed appeal from the January 2023 judgment would not fall within the merit test and that there was no right of appeal to the Legal Aid Review Committee against the “scope of funding approved by the Grants Division”. She was nonetheless invited to lodge a fresh application, which she duly did.
Given the state of the available evidence, it seems likely the wife’s fresh application for a grant of legal aid in the appeal will be refused and any appeal against that decision to the Legal Aid Review Committee is unlikely to meet with success, even if it is entertained. That being so, considerable doubt must exist as to whether the wife’s intended appeal to the Legal Aid Review Committee (assuming the grant application is refused) would even be competent (s 57(a)(ii)), but if it is, its pursuit would then appear to be frivolous (s 57(b)).
The husband contends, with some force, that the wife’s unconditional intention to appeal against the refusal of her application for legal aid irrespective of the reasons given or its refusal must be regarded as frivolous, if not vexatious, when it is not yet even known whether the grant application is refused and, if so, the basis upon which it is refused. If it is refused for perfectly good reasons, then an appeal from the decision without regard to the underlying merit is liable to be viewed as misguided. I am not therefore satisfied that s 57 of the State Act requires the appeal hearing to be adjourned.
The husband opposes the wife’s applications for the appeal hearing to be vacated and the appeal proceedings stayed until her legal aid application is determined. He has the ostensible right to enjoy the benefit of the appealed judgment, dismissing the wife’s suit against him for financial relief. She enjoys an unconditional right to appeal from that judgment, but she should be expected to prosecute it promptly. The wife has been represented in the appeal to date, without any grant of legal aid, by the solicitor who represented her at the trial. He may be prepared to continue that retainer but, if not, the wife will be compelled to prosecute the appeal on the basis of the Summary of Argument the solicitor has already prepared and filed for her. She need not make any additional oral submissions if she is disinclined.
The appeal is fixed for hearing more than four months after the appealed order was made and more than three months after the wife filed her appeal. The Summaries of Argument are already filed. The wife has not advanced a sufficiently strong reason for the hearing to be delayed and the husband should not be prejudiced by the delayed determination of the appeal. The wife does not have the means to recompense the husband for the extra costs he would incur by an adjournment of the appeal so close to its hearing.
The Court is mandated to acquit its business with due despatch and parties must conduct their litigation in a way which is consistent with that overarching purpose (ss 67(1)(b), 67(2) and 68(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)). The applications for the adjournment and stay are refused.
Proposed Orders 5 and 6
The application for these orders appeared to be redundant. The wife filed her Summary of Argument on 26 April 2023, within the time ordered by the appeal registrar, and does not need an extension of time to do so. Neither does the husband. His Summary of Argument was filed on 17 May 2023, also within time.
The wife abandoned her applications for these orders if her applications for the adjournment and stay of the proceedings were dismissed.
Proposed Order 3
The application to adduce further evidence in the appeal is usually left for consideration in conjunction with the appeal (r 13.39(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), but both parties wanted it determined now.
The wife initially wanted to adduce further evidence to prove two things: first, the husband’s non-disclosure in the trial of real property he owned in Country B; and secondly, the value of jewellery which was in issue at trial.
As to the first issue, the husband filed an affidavit refuting his ownership of Country B real estate and, after considering her position in light of that evidence, the wife properly conceded that the factual dispute ought not to be opened in the appeal. Her remedy, if at all, lies in an application made under s 79A of the Family Law Act 1975 (Cth) brought in the original jurisdiction of the court below. The wife abandoned her application to adduce further evidence in relation to the Country B property.
As to the second issue, the valuation evidence which the wife wants to adduce is not yet available to be assessed. The wife deposed this in her supporting affidavit:
46.I was not advised at the hearing to provide evidence as to the yalue of my missing jewellery and other items of personal property and I would seek to provide further evidence at any subsequent further hearing.
It is not true to say the wife was not advised by her lawyers at trial to obtain such valuation evidence. The absence of such evidence at trial was the subject of express debate with the trial judge, in answer to whose enquiries, the wife’s solicitor said the jewellery could not then be valued because it was not in the wife’s possession. It was not suggested the absence of valuation evidence was as a consequence of its necessity not even having been considered.
These exchanges occurred during the trial:
HIS HONOUR: I’m not taking any judicial notice of the price of gold at all. I have no idea what a gold costs.
…
HIS HONOUR: With respect, you conceded yesterday you don’t have any valuation evidence.
[SOLICITOR FOR THE WIFE]: I don’t have valuation evidence.
HIS HONOUR: And so you’re seeking to get your client to value the alleged jewellery?
…
HIS HONOUR: But you don’t have a valuation as to what they’re currently worth.
[SOLICITOR FOR THE WIFE]: Well, I can’t, because I can’t present them to a valuer.
(Transcript 18 October 2022, p.60 lines 33–34; p.61 lines 3–9 and lines 42–44).
The jewellery is still not in the wife’s possession, as she describes it as “missing jewellery”. If her lack of possession of the jewellery precluded its valuation at trial, so must it preclude any current valuation. The wife did not, because she could not, offer any submission to rebut that contention.
In any event, any valuation evidence the wife intends to try and acquire must be obtained from an adversarial expert and so the valuation evidence is liable to be controversial. The evidence would not be probative without the husband being afforded the opportunity to cross-examine the valuer.
Lastly, the proposed valuation evidence is not directed to any ground of appeal. Grounds 2 and 8 of the appeal pertain to the jewellery, but only by asserting the primary judge made factual errors by finding the husband did not possess the jewellery. The value of the jewellery could not help establish appealable error under either of those grounds.
The application to adduce such valuation evidence in the appeal is dismissed as it does not meet the recognised criteria for admission (CDJ v VAJ (1998) 197 CLR 172).
Proposed Order 4
That leaves only the application for permission to issue subpoenas requiring the production of documents for potential use as further evidence in the appeal.
The wife did not say in either of her affidavits why it is necessary to issue the subpoenas, to whom the subpoenas would be issued, what documents she expected would be produced in answer to them, or to what grounds of appeal the documents would be directed.
The wife abandoned this application during the hearing.
Disposition
The Amended Application in an Appeal is dismissed.
Costs of the interlocutory application will be costs in the appeal.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 23 May 2023
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