ANDERRIE & HODBIE - [2016] FamCAFC 169

FAMILY COURT OF AUSTRALIA

ANDERRIE & HODBIE

[2016] FamCAFC 169

FAMILY LAW – APPEAL – PROPERTY – Where the Notice of Appeal filed by the appellant is incompetent and does not contain proper grounds of appeal identifying appellate error by the trial judge nor relevant facts in support of her application for leave to appeal – Where the appellant has had an opportunity to file a further Notice of Appeal which addresses those omissions/concerns – Where the further Notice of Appeal sought to be filed by the appellant does not assist – Where the respondent through counsel asks that the Notice of Appeal be dismissed pursuant to s 96AA of the Family Law Act 1975 (Cth) – Where the appeal has no prospect of success and is doomed to fail – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent makes an application for costs on the basis of the lack of success of the Notice of Appeal – Where there should be an order for costs – Costs ordered in favour of the respondent as assessed.

Family Law Act 1975 (Cth) – s 96AA

Family Law Rules 2004 (Cth) – r 22.22(2)(c)

Lindon & The Commonwealth (1996) 136 CLR 251

APPELLANT:

Ms Anderrie

RESPONDENT:

Mr Hodbie

FILE NUMBER:

HBC

2015

APPEAL NUMBER:

SOA

2016

DATE DELIVERED:

29 August 2016

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

29 August 2016

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

3 March 2016

LOWER COURT MNC:

[2016] FCCA 994

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr T McKenna

SOLICITOR FOR THE RESPONDENT:

Worrall Lawyers

Orders

The Notice of Appeal filed on 31 March 2016 be dismissed.
The appellant pay the respondent’s costs of and incidental to the Notice of Appeal, such costs to be assessed.

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 Anderrie & Hodbie 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).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 22 of 2016
File Number: HBC 36 of 2015

Ms Anderrie

Appellant

And

Mr Hodbie

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Before the court today is the Notice of Appeal filed by Ms Anderrie (“the appellant”) on 31 March 2016 against orders made by Judge Baker on 3 March 2016. There were four applications before Judge Baker on that day, two of which related to costs, another of which related to alleged contempt, and the fourth of which related to an injunction.
In the Notice of Appeal the appellant sought leave to appeal. That was correct, but only in relation to the order made by her Honour dismissing the application for an injunction. However, in relation to the other three matters, no leave to appeal is required, and an appeal was able to be brought as of right.
In the Notice of Appeal the grounds of appeal are as follows:
1.Opposing attorneys have acted illegally in other jurisdictions with apparent immunity, Supreme Court of Tasmania …./…. and Hobart Magistrates Court M/…./….
2.On 25^th January 2016 a Fraudulent Response and Fraudulent Affidavit were filed with the Federal Circuit Court in (P)HBC 36/2015
3.On 2^nd February 2016 an Application for Contempt was filed with the Federal Circuit Court in (P)HBC36/2015
4.On the 2^nd February 2016 Trevor McKenna submitted details of costs but was dated 2^nd February 2015.
5. On the 2^nd February 2016 the Applicant submitted details of costs.
6.On the 5^th February 2016 the Applicant filed an Application for Stay of Proceedings
7.On the 16^th February 2016 the Respondent filed a Notice of Disontinunace [sic] except enforcement orders
8.On the 17^th February 2016 the Applicant filed a Notice to Admit Facts
9.On 22 February 2016 the Applicant received by mail an Enforcement Warrant
10.On 24^th February 2016 the Applicant filed an Injunction on the Enforcement Warrant
11.On 25^th February 2016 the affidavits were filed confirming that Justice of the Peace, one [Ms C] is not at “arms length” to the [respondent] and would not confirm notarisation of Affidavit filed on 25^th January 2016.
When the matter first came before this court on 12 August 2016, I indicated to the appellant that her Notice of Appeal was incompetent, in that the grounds of appeal did not identify appellate error by the trial judge, and in that regard I also include any ground of appeal which might have been directed to the order made by her Honour dismissing the application for an injunction.
In relation to the application for leave to appeal, that is also incompetent, and to demonstrate that I also set out the facts included by the appellant in her Notice of Appeal in support of her application for leave to appeal, namely:
1.Presiding Judge ignored the weight of evidence in dismissing the Application of Contempt against Trevor Joeseph [sic] McKenna of Worrall Lawyers.
2.Presiding Judge dismissed the Application filed to make Sealed Orders of 16^th October 2015 unenforceable since the Title Description of the property was incorrect, the Response and Supporting Affidavit was untimely, was not notarised at “arms length” and gives strong evidence to be a fraudulent act.
3.Trevor Joseph McKenna when questioned on the improprieties of both the Response and Affidavit filed on 25^th January 2016, laughed it off and I quote
“It was just an out of state affidavit”
This challenges the whole Westminster system of Justice that we abide by.
4.Presiding judge starting [sic] elucidating cost information from the opposing attorney as if the Hearing was already decided. Notwithstanding the substantial evidence against Worrall Lawyers. Earlier, Trevor McKenna asked for a delay in proceedings until 4pm as he was to attend a seminar at The Law Society. Showing utter disdain for the law and due process was apparent, as this was a Hearing for Contempt. He was granted leave until 4 pm. The Applicant left the Court in disgust.
5.On 3^rd March 2016, following Judge Bakers [sic] decision at 9 - 15 am, whereby Judge Baker totally dismissed ALL the Applications, she awarded Cost’s [sic] for the Respondent. Worrall Lawyers had the Enforcement Warrant served on the Applicant at 6 - 02 pm that same day.
6.Communication with the Federal Attorneys [sic] office has resulted in further action, including the likelihood that Criminal charges under the Federal Crimes Act may be instituted in the future.
7.The NSW Justice Department provided details of a [Ms R] who notarised the Affidavit of [the respondent] on 29^th May 2015. It seems that the said [Ms R] is not at “arms length” to [the respondent], as she is an employee of [a College], [in] NSW, where at the time of the notarisation [Ms N], his daughter was also an employee.
8.[The respondent] was placed on a Mental Health Plan on 6^th June 2014 by Dr [P], The family Doctor, and since 26^thNovember 2014, ([Ms N] and [Ms M] Daughters of [the respondent]) hold “The” Enduring Power of Attorney over [the respondent].
9.On the 19^th November 2014, whilst the Applicant was attending to the Applicants [sic] and the Respondents [sic] Business in Melbourne, [the respondent], placed an Illegal Caveat, in Concert with Worrall Lawyers, on the Property … and changed the Title etc. from Joint Tenants to Tenants in Common.
(emphasis as in original)
In response to indicating to the appellant that her Notice of Appeal was incompetent and as it stood would have to be dismissed, the appellant sought an adjournment to enable her to consider her position, and file an Amended Notice of Appeal if she so determined.
That application was opposed by Mr Hodbie (“the respondent”). However, given that the appellant was without legal representation, and in the interests of justice, I determined that the application should be granted and the appellant should have one further opportunity to provide a Notice of Appeal which set out competent grounds of appeal, as well as relevant facts in support of her application for leave to appeal. The matter was adjourned to today for that purpose.
The appellant though has not filed any Amended Notice of Appeal.
For completeness I indicate that on 19 August 2016 the Appeal Registry received from the appellant a Notice of Appeal dated 18 August 2016, and an affidavit also sworn on that date. However, those documents were not accepted for filing and were returned unissued. The primary reason for the Appeal Registrar doing that is apparent from her letter to the appellant of 22 August 2016, wherein she indicated that in the Notice of Appeal the appellant sought to appeal against orders made on 16 October 2015, 4 February 2016, 3 March 2016, 5 April 2016, 12 April 2016, 19 April 2016 and 9 June 2016. However, putting aside the orders of 3 March 2016, which are the subject of the Notice of Appeal which is before the court, in order for the appellant to appeal against the other orders, she would have to first obtain an extension of time. She was out of time under the Family Law Rules 2004 (Cth) to file a Notice of Appeal, and that was explained to the appellant.
Given that the appellant is still without legal representation, I took the opportunity to peruse a copy of the Notice of Appeal that she forwarded to the court, to see if I could find anything in it which assisted the appellant in terms of providing either competent grounds of appeal, or relevant facts in support of an application for leave to appeal, in relation to the orders of 3 March 2016. I have indicated to the appellant today that I could not find anything in there which assisted her in that regard.
Indeed, as I have confirmed today with the appellant, the thrust of that Notice of Appeal was, in effect, that because she and the respondent were in a partnership, and there was a Deed of Partnership, the Federal Circuit Court of Australia had no jurisdiction to make orders, including orders for property settlement. I have indicated to the appellant that that is not correct, but I do not need to pursue that, because of course, that Notice of Appeal is not before the court, and to repeat, I cannot find anything in that Notice which assists in relation to the concerns that I have about the Notice of Appeal filed on 31 March 2016.
Today, counsel for the respondent has asked me to dismiss the Notice of Appeal pursuant to s 96AA of the Family Law Act 1975 (Cth) (“the Act”). That section provides as follows:
APPEAL MAY BE DISMISSED IF NO REASONABLE PROSPECT OF SUCCESS
96AA(1) If:
(a) an appeal has been instituted in a court under this Part; and
(b)having regard to the grounds of appeal as disclosed in the notice of appeal, it appears to the court that the appeal has no reasonable prospect of success (whether generally or in relation to a particular ground of appeal);
the court may, at any time, order that the proceedings on the appeal be dismissed (either generally or in relation to that ground).
96AA(2)This section does not limit any powers that the court has apart from this section.
I have sought submissions from the appellant in relation to the matter generally, and specifically in relation to the application by counsel for the respondent. Unfortunately the appellant’s response has been entirely irrelevant, and frankly, non-responsive to my question of her as to why I should not dismiss her appeal because of it having no reasonable prospect of success. Thus, it now falls to me to decide whether indeed the appeal should be allowed to proceed, or whether it should be dismissed under s 96AA of the Act.
I have set out above the grounds of appeal, and the facts relied upon in support of the application for leave to appeal.
In terms of any relevant authority, the dismissal of an appeal under s 96AA of the Act is of a similar nature to a summary dismissal of an action. In that regard the relevant approach is set out by Kirby J in the High Court decision of Lindon & The Commonwealth (1996) 136 ALR 251. His Honour there set out the approach to be taken to an application for summary relief at page 256.
Not all of the six principles set out by his Honour are relevant to the matter I have to deal with, but there are some which are. For example, the second principle identified by his Honour is this:
To secure such relief, [namely summary dismissal] the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
The third guideline is relevant as well and it provides that:
An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of the court. …
Then there is the sixth principle identified by his Honour, which in my view is highly relevant:
…If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
The question is whether there is no reasonable prospect of success. As is apparent from the grounds of appeal, in my view, that is the case. The grounds of appeal are simply incompetent, they do not identify any appealable error by the trial judge, and not only is there no reasonable prospect of success, there is no prospect of success, and the appeal is doomed to fail.
The same applies to the application for leave to appeal. The facts relied on in support of that application are irrelevant, they do not establish any error of principle, or that a substantial injustice has resulted from the order of the trial judge, bearing in mind that we are only talking about one of the four orders made by her Honour, namely dismissal of the injunction.
Thus I propose to dismiss the Notice of Appeal.
I now have an application for costs made on behalf of the respondent.
The basis of that application is the lack of success of the Notice of Appeal, and of course, the fact that I have found that it was incompetent, it was doomed to fail, and using the words of s 96AA, it had no reasonable chance of success.
I have invited the appellant to respond to that application, but again, unfortunately, she has been non-responsive, and what she has put to me is completely irrelevant to the issue that I now have to determine.
In my view, given the circumstances, and my findings, costs should be ordered.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 29 August 2016

Associate:

Date: 30 August 2016