Acharya and Bhatt
[2019] FamCAFC 83
•20 May 2019
FAMILY COURT OF AUSTRALIA
| ACHARYA & BHATT | [2019] FamCAFC 83 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – DISMISSAL – Where the appellant has failed to comply with an order for security for costs in relation to an appeal, failed to take procedural steps to prosecute the appeal and has failed to appear at the hearing – Where the requirements of r 22.45 of the Family Law Rules 2004 (Cth) have been satisfied – Appeal dismissed with no order as to costs. |
| Family Law Act 1975 (Cth) s 97(3) Family Law Rules 2004 (Cth) rr 1.04, 1.08, 22.45 |
| Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Connor & Cosgrove (2017) FLC 93‑769; [2017] FamCAFC 61 |
| APPELLANT: | Ms Acharya |
| RESPONDENT: | Mr Bhatt |
| FILE NUMBER: | SYC | 5732 | of | 2015 |
| APPEAL NUMBER: | EA | 126 | of | 2018 |
| DATE DELIVERED: | 20 May 2019 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge, Watts & Austin JJ |
| HEARING DATE: | 20 May 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 7 September 2018 |
| LOWER COURT MNC: | [2018] FamCA 789 |
REPRESENTATION
| THE APPELLANT: | No appearance |
| THE RESPONDENT: | In person (via telephone link) |
Orders
Pursuant to r 22.45 of the Family Law Rules 2004 (Cth), the appeal against the orders of the Family Court of Australia made on 7 September 2018 is dismissed.
There be no order as to costs.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Acharya & Bhatt has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 126 of 2018
File Number: SYC 5732 of 2015
| Ms Acharya |
Appellant
And
| Mr Bhatt |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Watts J
By way of a Notice of Appeal filed 2 October 2018, the appellant, appeals the following orders made by the primary judge on 7 September 2018 in proceedings between the appellant and the respondent:
·An order dismissing the appellant’s proceedings in the Supreme Court of New South Wales (Order 2);
·A property settlement order (Paragraphs 1, 6-15 and 17-23);
·An order dismissing the interim spousal maintenance order and the appellant’s application for a final spousal maintenance order (Orders 5 and 24);
·Orders, including procedural orders, in respect of questions as to costs (Orders 3-4, 16, 25-27);
·An order granting leave to relist for machinery orders (Order 28); and
·An order otherwise dismissing all outstanding applications (Order 29)
By way of an Application in an Appeal filed 18 January 2019, the respondent seeks that the appeal be dismissed pursuant to r 22.45 of the Family Law Rules 2004 (Cth) (“the Rules”) because the appellant has failed to show due diligence in proceeding with the appeal.
The Application in an Appeal was supported by an affidavit sworn by the respondent on 17 January 2019.
Background
The parties married in 1988 in Country YY, moved to Australia in 1989 and separated in 1998. There are two adult children of the marriage.
In 2009, the respondent purchased a property at Suburb C (“Suburb C property”) in his name. In 2015, almost 17 years after the parties’ separation, the respondent commenced property proceedings.
After protracted litigation, the matter was heard on a final basis before the primary judge for five days in May and June 2018.
It was the appellant’s case that the respondent held the whole of the Suburb C property on trust for her. That contention was rejected by the primary judge.
On 7 September 2018, the primary judge delivered reasons and made orders which provided for the Suburb C property to be sold, the net proceeds to be divided equally between the parties (paragraph 12(b) of the property settlement order) and for the appellant to receive 30 per cent of the respondent’s superannuation fund (paragraph 20).
On 25 September 2018, the ZZ Bank took possession of the Suburb C property because of defaults on the loan. As at November 2018, the property was in the process of being sold, and the respondent submitted that the present debt in relation to that property was approximately $1 million and that the interest on the debt was accruing at $5,000 each week.
Following the delivery of judgment on 7 September 2018, the appellant made an application to the primary judge for a stay of the orders. On 25 October 2018, the primary judge stayed paragraph 12(b) of the property settlement order of 7 September 2018 upon the following conditions:
(a)The [appellant] is to comply with the requirements of the Family Law Rules applying to the appeal filed by her on 2 October 2018.
(b)In the event of the [appellant] failing to comply with the Family Law Rules in the prosecution of her appeal then the stay made by this order will expire within 14 days of the [appellant]’s failure unless the stay is further extended by a judge of this [C]ourt.
(c)The [appellant] is to file an Application in an Appeal pursuant to rule 22.36 of the Family Law Rules seeking that the hearing of her appeal be expedited. Such application is to be filed and served on the [respondent] (by email) no later than 14 days from the date of this order.
On 26 October 2018, the appellant filed an Application in an Appeal which sought that the stay orders be set aside and a further stay order be made without the abovementioned conditions. That application was rejected by the Registrar who had informed the appellant that she was required to file a Notice of Appeal. On 8 November 2018, the appellant sought a review of that decision.
Further, on 26 October 2018, the respondent filed an Application in an Appeal which sought security for costs in the appeal in the sum of $25,000.
On 22 November 2018, Ainslie-Wallace J dealt with both the appellant’s and the respondent’s Applications in an Appeal and made the following orders:
1.The application filed on 8 November 2018 to review the decision of the Appeal Registrar is dismissed.
2.Within twenty-eight (28) days of the date of this order the [appellant] shall pay to the [respondent]’s solicitors the sum of $25,000 to be held as security for any costs awarded to the [respondent] in relation to appeal EA 126 of 2018.
3.In the event that the [appellant] fails to comply with order (2) hereof then the said appeal be stayed pending payment by the [appellant] of the said amount.
The appellant has failed to pay the sum of $25,000 within 28 days and accordingly, the appeal is currently stayed.
The respondent deposed that the appellant has not only, generally, failed to comply with the Rules in the prosecution of the appeal but also failed to file the application for expedition pursuant to condition (c) of paragraph 12(b) of the order of 25 October 2018, being conditions upon which the property settlement order had been stayed. Accordingly, the respondent says that the stay of paragraph 12(b) made 25 October 2018 by the primary judge is no longer an operative order and as a consequence, the respondent asserted (at paragraph 9 of his affidavit) that the mortgagee will sell the property, deduct all expenses (including the mortgage, enforcement expenses, Capital Gains Tax and any other expenses) and distribute the remaining amount 50/50 between the appellant and the respondent. The respondent also indicated that he intends to seek enforcement orders to recoup cost orders that have been awarded against the appellant in his favour.
In addition, the appellant has failed to file a Notice of Address for Service containing her residential address and asserted in correspondence with the Registry on 12 October 2018, that she “would like to take all service by email, electronic means”. The respondent says at paragraph 13 of his affidavit that the appellant “has stopped acknowleding [sic] emails sent to her on any of the email’s ids [sic] since 23rd November 2018”.
By way of email forwarded to the appellant’s email address by the Registry on 15 April 2019, the appellant was informed that the respondent’s dismissal application would be heard at 10:30 am on Monday, 20 May 2019.
The appellant has been called three times outside the court this morning and has failed to appear.
Applicable law
Rule 22.45 of the Rules provides as follows:
Dismissal of appeal and applications for non-compliance or delay
(1) This rule applies if:
(a) the appeal is not taken to have been abandoned; and
(b) a party (the defaulting party) has not:
(i) met a requirement under these Rules or the Regulations;
(ii) complied with an order in relation to the appeal (including an application for leave to appeal or application in relation to an appeal); or
(iii) shown reasonable diligence in proceeding with an appeal or application.
(2) A court having jurisdiction in the appeal or application may:
(a) if the defaulting party is the appellant or the applicant:
(i) dismiss the appeal or application; or
(ii) fix a time by which a requirement is to be met and order that the appeal or application will be dismissed if the order imposing the requirement is not complied with; …
In Jackamarra v Krakouer (1998) 195 CLR 516 at 528, Gummow & Hayne JJ said:
… [W]hen an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way…
Similarly, s 97(3) of the Family Law Act 1975 (Cth) (“the Act”) states:
In proceedings under this Act, the court shall proceed without undue formality and shall endeavour to ensure that the proceedings are not protracted.
Rule 1.04 expresses that the main purpose of the Rules is “to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case”. Further, r 1.08(1) imposes a responsibility on all parties to “promote and achieve the main purpose” of the Rules by inter alia “ensuring readiness for court events” (r 1.08(1)(c)), “complying with time limits” (r 1.08(1)(e)) and “assisting the just, timely and cost-effective disposal of cases” (r 1.08(1)(g)).
As discussed by the Full Court in Connor & Cosgrove (2017) FLC 93‑769 (“Connor”) at [19], r 22.45 of the Rules is mirrored in r 21(2)(b) of the Court Procedures Rules 2006 (ACT), considered by the High Court of Australia in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 where it was said, at [92], per Gummow, Hayne, Crennan, Kiefel & Bell JJ:
The purposes stated in r 21 reflect principles of case management by the courts. Such management is now an accepted aspect of the system of civil justice administered by courts in Australia. It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process. In its report in 2000, Managing Justice: A review of the federal civil justice system, the Australian Law Reform Commission noted that: “Over the last ten years Australian courts have become more active in monitoring and managing the conduct and progress of cases before them, from the time a matter is lodged to finalisation”.
(Footnotes omitted)
Conclusion
The appellant has failed to comply with the order in relation to security for costs with the effect that the appeal is currently stayed and there is every prospect that that stay would remain permanent. The appellant has not paid a number of costs orders which have been made against her on 21 September 2016, 22 March 2017 and 24 November 2017. The appellant has failed to take procedural steps to prosecute the appeal. It would represent an injustice to the respondent to permit the appeal to continue in these circumstances.
In addition, I make the following comments:
a)The appellant filed a Notice of Appeal on 2 October 2018 which sets out 19 grounds of appeal. However, none of those grounds made clear where error is to be found in the reasons of the primary judge; and
b)Having read the complex assessment made by the primary judge in his reasons and the material before him, there is no basis to reasonably suspect that the primary judge has made appealable error.
I would propose that pursuant to r 22.45 of the Rules, the appeal against the orders of the primary judge made 7 September 2018 be dismissed.
Austin J
I agree with the order proposed and the reasons given by Justice Watts.
Aldridge J
I also agree and the order of the Court is that pursuant to r 22.45 of the Family Law Rules 2004 (Cth), the appeal against the orders of the Family Court of Australia made on 7 September 2018 is dismissed.
Costs
Aldridge J
It is my opinion that as the respondent has prepared the application and affidavit himself, albeit with the assistance of legal advice and given that the respondent has not included in any of the material served upon the appellant a claim for legal costs or indicated how that claim is made up, the appropriate order is that there be no order as to costs.
Watts J
I agree.
Austin J
I agree.
Aldridge J
There will be no order as to costs.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Aldridge, Watts & Austin JJ) delivered on 20 May 2019.
Associate:
Date: 20 May 2019
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