Baghti & Baghti & Ors (No 2)

[2014] FamCAFC 204

FAMILY COURT OF AUSTRALIA

BAGHTI & BAGHTI AND ORS (NO 2) [2014] FamCAFC 204

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – REOPEN APPEAL – Where the applicant seeks to reopen the appeal to present “supplementary submissions” – Where the Full Court does not require the respondents or the Independent Children’s Lawyer to file responding documents – Where there is a clear public interest in the finality of litigation – Where the applicant was heard upon the matters that he seeks to raise again in relation to two of the grounds of appeal – Where the balance of the submissions relate to grounds of appeal that were not before the court – Where there is no basis to reopen the hearing to permit the further submissions to be presented – Application dismissed.

Family Law Act 1975 (Cth)

Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 300

APPLICANT: Mr Baghti

FIRST RESPONDENT: Ms Baghti

SECOND RESPONDENT: Mr B

THIRD RESPONDENT: Mrs B

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 2145 of 2009

APPEAL NUMBERS:	EA	118	of	2012
EA	10	of	2013

DATE DELIVERED: 21 October 2014

PLACE DELIVERED:	Adelaide
JUDGMENT OF:	Strickland, Ainslie-Wallace & Ryan JJ

HEARING DATE: In Chambers

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 22 August 2012
27 November 2012

LOWER COURT MNC: [2012] FamCA 711
[2012] FamCA 1112

REPRESENTATION

THE APPLICANT:	In Person
THE FIRST RESPONDENT:	In person
SOLICITOR FOR THE SECOND AND THIRD RESPONDENTS:	McDonell Milne Toltz
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:	Legal Aid NSW

Orders

1. The application in an appeal filed on 2 October 2014 be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Baghti & Baghti and Ors (No 2) has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 118 of 2012 and EA 10 of 2013
File Number: SYC 2145 of 2009

Mr Baghti

Applicant

And

Ms Baghti

First Respondent

And

Mr B

Second Respondent

And

Mrs B

Third Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. The application before the court is the application in an appeal filed by

   
   

   Mr Baghti (“the applicant”) on 2 October 2014.  In that application the following orders are sought:

   1.That the Full Court Family Court of Australia comprising their Honours (sic)

   2.Justices Strickland, Ainslee–Wallace (sic) and Ryan (Their Honours) who are reserved in the judgment concerning the applicant’s appeal continue to be reserved in the said judgment until this application is determined.

   3.That the Full Court receive further evidence by way of submissions on the hearing of the appeal.

   4.        That costs be costs in the cause.

   5.        Such other Orders as the Court deems fit.

2. The application is supported by an affidavit of the applicant also filed on

   
   

   2 October 2014.  Annexed to that affidavit are the “supplementary submissions” sought to be presented to this court if the hearing of the appeal is reopened.

3. On 14 October 2014 we ordered that the application be determined in chambers, and that if the court required any of the other parties including the Independent Children’s Lawyer (“ICL”) to file responding documents the Appeal Registrar would advise them accordingly.  In the circumstances we do not require any of the other parties to file responding documents.

Background

1. On 17 September 2014 we heard the appeals against orders made by Fowler J on 19 September 2012 (EA 118 of 2012) and 27 November 2012 (EA 10 of 2013). 

2. In compliance with paragraph 3 of the order made by the Full Court on 14 May 2014, the applicant filed his written summary of argument for the purpose of the appeals.  In that summary the applicant set out amended grounds of appeal that he proposed to pursue in EA 118 of 2012.  The respondents and the ICL did not oppose the applicant moving on these amended grounds of appeal, and no formal amended Notice of Appeal was required to be filed.

3. By email dated 18 August 2014 and sent to the Appeal Registrar, the applicant’s then solicitor indicated that the applicant wished to “refine the grounds of appeal” and attached a document to that email containing “refined” grounds of appeal.

4. The Appeal Registrar correctly refused to receive this document, and by email dated 19 August 2014 informed the then solicitor for the applicant that the applicant was out of time to file an amended Notice of Appeal, and indicated that he would either have to obtain the consent of the other parties to an extension of time to file an amended Notice of Appeal, or file an application in an appeal seeking an extension of time from the Full Court.

5. The respondents and the ICL objected to the Appeal Registrar receiving the “refined” grounds and objected to the applicant being able to pursue them.  Importantly, no application in an appeal was filed by the applicant seeking an extension of time to file an amended Notice of Appeal.

6. Out of abundant caution, at the commencement of the hearing of the appeal we raised this issue with counsel for the applicant, and he indicated that he was not seeking to pursue the “refined” grounds of appeal, and the appeal was to proceed on the amended grounds of appeal set out in the written summary of argument filed on 30 June 2014, and to which the respondents and the ICL had responded in their respective summaries of argument.

7. There are three grounds of appeal identified by the applicant in respect of which the hearing of the appeal is sought to be reopened and further submissions made.  They are Grounds (1) and (3), and Ground (4)(b) of the amended grounds of appeal set out in the written summary of argument of the applicant filed on

   
   

   30 June 2014.  Those grounds are as follows:

   (1)That His Honour erred in accepting and placing weight on the report and subsequent oral evidence of Dr [Q];

   …

   (3)In the premises, His Honour erred and his discretion miscarried in the making of parenting orders.

   …

   (4)That His Honour’s finding (at para 848 of the Judgment) that “The Husband has failed in the court’s view to establish that the sum said to be due with respect to the controlled monies is not due” amounts to an error law in that:-

   …

   (b)      is against the weight of the evidence.

Discussion

1. In relation to Grounds (1) and (3), it is difficult to discern from the body of the affidavit, or the submissions themselves, the basis on which it is sought to reopen the hearing.  All that is put is that the questions asked by Ainslie-Wallace J of his counsel during the hearing “are not the questions which the court should be asking”.  How that can be a justifiable reason for this court to reopen the hearing is not explained.

2. In any event, in our view, it is not open to the applicant to have counsel prepare a written summary of argument, appear on his behalf and make oral submissions at the hearing of the appeal, then after listening to what is said between bench and bar, and after counsel has completed his submissions, seek to revisit questions asked by the bench during the hearing.

3. Further, we do not accept that “wrong” questions were asked of counsel, and in any event the “further” submissions sought to be made do not raise anything new, and are plainly a repeat of submissions contained in the written and oral submissions of counsel.

4. There is a clear public interest in the finality of litigation, and the applicant was given ample opportunity to be heard, and was heard upon the matters that he seeks to raise again. 

5. In the context of applications to reopen an unperfected judgment or order, it has long been held that “the jurisdiction is not to be exercised for the purposes of re-agitating arguments already considered by the Court; nor is it to be exercised simply because the party seeking a rehearing has failed to present the argument in all its aspects or as well as it might have been put” (Autodesk Inc v Dyason (No. 2) (1993) 176 CLR 300, per Mason CJ at 303).

6. It seems to us that these propositions apply equally in the circumstances of this case.

7. Accordingly, there is no basis to reopen the hearing to allow the applicant to present his “further” submissions in relation to Grounds (1) and (3).

8. In relation to Ground (4)(b) the reason given by the applicant for the reopening of the hearing to present further submissions is as follows:

   I note that my counsel at the hearing of the appeal indicated to the court on transcript that there were certain matters that I had wished placed before the court that in the exercise of his own forensic judgement he declined to do.

   I now seek to briefly place those matters before the court.

9. In the written summary of argument filed on behalf of the applicant on 30 June 2014, counsel indicated as follows in relation to this ground of appeal:

   (b)It is submitted that the finding of His Honour in this regard was against the weight of the evidence.  As Counsel has only had a short period of time to amend the proposed grounds of appeal and to prepare this Outline of Submissions so as to comply with guillotine order contained in the existing timetable, the appellant will seek leave to supplement these submissions by way of an amended submission within seven (7) days.

   However, no amended submissions were presented.

10. At the hearing of the appeal, after counsel conceded that he could not pursue Ground (4)(a), he was asked by the court what he wanted to say about Ground (4)(b).  Counsel’s response was that he could not pursue that.  He gave no reason for this but it is apparent that that position flowed from the concession made in relation to Ground (4)(a).  Importantly though, he did not say in relation to Ground (4)(b) that “there were certain matters that [the applicant] had wished placed before the court that in the exercise of his own forensic judgement he declined to do”.

11. What in fact occurred was that counsel then moved on and said that his client had wished to maintain those grounds of appeal referred to as “refined” grounds of appeal, that that still remained his wish, but that he, his counsel, could not properly do so.

12. That response by counsel was entirely understandable given that the “refined” grounds of appeal were not pursued.  Indeed, they were not even before the court.

13. Thus the reason given by the applicant to reopen the hearing in relation to Ground (4)(b) is to say the least, disingenuous.  It is also plainly not open to the applicant to seek to reopen the hearing to present submissions in support of the “refined” grounds of appeal.

14. Although there is an attempt by the applicant in those submissions to relate them to Ground (4)(b), it is readily apparent that they primarily relate to one of the “refined” grounds of appeal.

15. Accordingly, there is also no basis to reopen the hearing to permit these further submissions to be made.

Conclusion

1. The application must be dismissed and we will make that order.

I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ainslie-Wallace & Ryan JJ) delivered on 21 October 2014.

Legal Associate:        

Date:    21 October 2014