FAMILY COURT OF AUSTRALIA
| BAGHTI & BANIS AND ANOR | [2015] FamCAFC 80 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – reinstatement of abandoned appeal – where appeal has no merit – where application is dismissed. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) rr 19.29, 19.30, 19.31, 22.13 |
| Gallo v Dawson (1990) 93 ALR 479 Jackamarra v Krakouer (1998) 195 CLR 516 Kohan & Kohan (1993) FLC 92-340 Rand & Rand [2009] FamCAFC 88 |
| APPLICANT: | Mr Baghti |
| FIRST RESPONDENT: | Mr Banis |
| SECOND RESPONDENT: | Ms Banis |
| FILE NUMBER: | SYC | 2145 | of | 2009 |
| APPEAL NUMBER: | EA | 166 | of | 2014 |
| DATE DELIVERED: | 8 May 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 20 April 2015 6 May 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 13 November 2014 |
| LOWER COURT MNC: | [2014] FamCA 975 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Levet |
| SOLICITOR FOR THE APPLICANT: | Baghti & Company Lawyers |
| SOLICITOR FOR THE FIRST RESPONDENT: | McDonell Milne Toltz Family Lawyers |
| SOLICITOR FOR THE SECOND RESPONDENT: | McDonell Milne Toltz Family Lawyers |
ORDERS DATED 6 MAY 2015
The first and second respondents have leave to withdraw their oral application made pursuant to order 2 on 20 April 2015.
The applicant has leave to file in court the Notice of Address of Service of Baghti & Company Lawyers.
ORDERS DATED 8 MAY 2015
The application in an appeal filed by Mr Baghti on 2 March 2015 be dismissed.
The applicant pay the first and second respondents’ costs in the total amount of $800 within 28 days.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Baghti & Banis and Anor has been approved by the Chief Justice pursuant to
s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 166 of 2014
File Number: SYC 2145 of 2009
| Mr Baghti |
Applicant
and
| Mr Banis |
First Respondent
and
| Ms Banis |
Second Respondent
REASONS FOR JUDGMENT
This is an application by Mr Baghti (“the applicant”) filed on
2 March 2015 to reinstate his Notice of Appeal filed on 11 December 2014. The proposed appeal is against orders made by Rees J on 13 November 2014 which resulted in the dismissal of the applicant’s application to review orders and directions made by a Senior Registrar on 12 August 2014 and
2 September 2014. Because the applicant failed to file a draft appeal index within the time prescribed by r 22.13 of the Family Law Rules 2004 (Cth) (“the rules”), the appeal was deemed abandoned.
The orders made on 12 August 2014 and 2 September 2014 concerned the assessment of costs to be paid by the applicant, pursuant to orders made by Fowler J on 27 November 2012, to Mr Banis (“the first respondent”) and Ms Banis (“the second respondent”). The respondents are the applicant’s former parents-in-law who were joined in property settlement proceedings between the applicant and Ms…
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- AGLC
- Baghti & Banis [2015] FamCAFC 80
- Case
- [2015] FamCAFC 80
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the application to reinstate the appeal should be granted and, if so, what orders should be made in relation to costs. The court had to consider the guiding principles relating to applications to reinstate an appeal, as outlined in Gallo v Dawson (1990) 93 ALR 479 and Jackamarra v Krakouer (1998) 195 CLR 516. The court also had to assess the merits of the appeal, considering the eleven grounds propounded by Mr Baghti and whether any of them could succeed.
In its reasoning, the court found that Mr Baghti could not provide a reasonable explanation for his delay in filing the draft appeal index. Despite his qualifications in law, extensive experience in this jurisdiction, and the assistance of a lawyer living in the same household, he failed to establish the relevant time frame for filing the draft index. The court also found that the appeal had no merit as the single ground that could be properly pressed did not have a reasonable prospect of success.
Consequently, the court dismissed the application to reinstate the appeal and ordered Mr Baghti to pay the first and second respondents' costs in the total amount of $800 within 28 days. The court rejected the respondents' application for indemnity costs, finding that there was no proper basis for such an order in this application.
This case serves as a reminder of the importance of strict compliance with the Family Law Rules 2004 in family law proceedings. Failure to do so may result in the abandonment of an appeal, even if the appellant has a reasonable explanation for the delay. Additionally, the case highlights the court's discretion in deciding whether to reinstate an abandoned appeal, taking into account the history of the proceedings, the nature of the litigation, and the consequences for the parties of the grant or refusal of leave.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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