Bapodra & Acharya
[2022] FedCFamC1A 199
Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Bapodra & Acharya [2022] FedCFamC1A 199
Appeal from: Bapodra & Acharya [2022] FedCFamC2F 1160 Appeal number: NAA 216 of 2022 File number: MLC 10601 of 2020 Judgment of: AUSTIN J Date of judgment: 29 November 2022 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Where the respondent seeks the appeal be summarily dismissed, or alternatively, an order for security for costs – Summary dismissal – Where the application is misconceived – Where it cannot be logically contended the appeal lacks any reasonable prospect of success – Security for Costs – Where the application wrongly assumes the arguments in support of the application for summary dismissal are accepted – Where there is no proper evidentiary foundation for the application – Application dismissed. Legislation: Evidence Act 1995 (Cth) ss 140, 141
Family Law Act 1975 (Cth) Pts V, VIIIAB, ss 47C, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 46
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 12.02
Cases cited: Frazier & Valdez (2016) FLC 93-729; [2016] FamCAFC 163 Number of paragraphs: 24 Date of hearing: 29 November 2022 Place: Newcastle (via video link) The Appellant: Litigant in person Counsel for the Respondent: Mr Cenacchi Solicitor for the Respondent: Merton Lawyers ORDERS
NAA 216 of 2022
MLC 10601 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS BAPODRA
Appellant
AND: MR ACHARYA
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
29 NOVEMBER 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 8 November 2022 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 the pseudonym Bapodra & Acharya 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 on 31 August 2022 by a judge of the Federal Circuit and Family Court of Australia (Division 2) in proceedings contested between the parties under Pt VIIIAB of the Family Law Act 1975 (Cth) (“the Act”).
The appealed orders were made in these terms:
1.The parties were not in a de facto relationship pursuant to s90RD of the Family Law Act 1975 (Cth) for the period June 2015 until March 2019.
2.The Initiating Application filed 30 September 2020 be and is hereby dismissed.
3.All extant application be otherwise dismissed.
As can be seen, the primary judge declared the parties were not in a de facto relationship during a certain period and consequently dismissed the appellant’s application for property settlement relief.
By Notice of Appeal filed on 28 September 2022, the appellant appeals from those orders on this single ground of appeal:
1.THAT THE JUDGE APPLIED THE WRONG TEST. THE JUDGE SHOULD HAVE CONSIDERED ALL EVIDENCE AND MATTERIALS [sic] PRESENTED ON THE BASIS OF BEING STAISFIED [sic] ON A BALANCE OF PROBABILITIES. THE JUDGE STATE AT PARAGRAPH 110 OF HER DECISIONS. …
(As per the original)
The ground refers to the finding made by the primary judge expressed this way in the reasons for judgment:
110.I am not satisfied beyond a reasonable doubt that the [appellant] and the Respondent cohabitated on a permanent basis together throughout the period of their relationship, as alleged by the [appellant].
(Emphasis added)
On 8 November 2022, the respondent filed an Application in an Appeal seeking, primarily, the summary dismissal of the appeal pursuant to s 47C of the Act, but alternatively, an order compelling the appellant’s payment of $31,290 by way of security for the respondent’s expected costs of the appeal.
These reasons explain the dismissal of the respondent’s interlocutory application.
Summary dismissal
The application brought under s 47C of the Act is ill conceived. That statutory provision applies only to appeals brought from courts of summary jurisdiction under Pt V Div 4 of the Act. This appeal is not brought from a court of summary jurisdiction under the Act.
Instead, the power to summarily dismiss unmeritorious appeals from judgments pronounced by a judge of the Federal Circuit and Family Court of Australia (Division 2) is to be found within s 46(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”).
Summary dismissal is justified if the appeal has no reasonable prospect of success, even if the appeal is not hopeless or bound to fail (ss 46(2) and 46(3) of the FCFCA Act).
In support of the summary dismissal application, the respondent relied upon the affidavit of his solicitor filed on 8 November 2022, wherein he relevantly deposed:
15.… [T]he Appeal has no real prospect of success and should therefore be dismissed.
…
18.On 17 August 2022, whilst being cross examined, it was put to the Appellant by Counsel for the Respondent that the parties did not live together on a permanent basis, to which the Appellant stated words to the effect of:
“there is no doubt we lived together, no reasonable doubt”.
…
20.Upon my reading of paragraph 110 of Her Honour’s Reasons, I understood Her Honour to be directly quoting the statement that the Appellant made in evidence on 17 August 2022 as referenced at (18) and did not take it that Her Honour had applied the wrong standard of proof.
21.From my understanding above, I verily believe that the Appellant is misconstrued in her position that Her Honour applied the wrong standard of proof in the Initial Proceeding.
22.On this basis and given that the Appellant has appealed Her Honour’s decision on this solitary ground, I do not believe the Appellant has any real prospect of successfully appealing Her Honour’s decision in the Initial Proceeding.
The belief expressed by the respondent’s solicitor in those paragraphs of the affidavit may be honestly held, but his subjective opinion about the manner in which the reasons for judgment should be construed is hardly a sufficient basis upon which to conclude the appeal has no reasonable prospects of success.
The respondent made this submission in support of the summary dismissal application, which really added nothing to his solicitor’s affidavit:
12.The court ought to exercise its discretion pursuant to section 47C of the Family Law Act and dismiss the appeal because the Appellant lacks a reasonable cause of action, and the application is clearly frivolous and vexatious.
13.Paragraph 110 of Her Honour’s decision is not indicative of the standard of proof applied by Her Honour. It is a direct quote from the Appellant.
14.During the trial, whilst being cross examined, it was put to the Appellant that the parties did not live together, to which the Appellant replied with words to the effect:
“There is no doubt we lived together, no reasonable doubt”.
Her Honour simply quoted the Appellant in her reasons.
19.… The appellant knows Her Honour was quoting the Appellant. Therefore, the appeal is frivolous and brought in bad faith, making it vexatious.
(Footnotes omitted)
The appellant denies saying the words in cross-examination alleged by the respondent. As yet, there is no transcript available to settle that particular dispute, but even presuming the appellant did give oral evidence in those terms it is not enough to sustain the application for summary judgment.
There is no doubt the civil standard of proof prescribed by s 140 of the Evidence Act 1995 (Cth) (“the Evidence Act”) was the measure by which any factual finding made by the primary judge about the existence or non-existence of any de facto relationship had to be gauged. Yet the terminology employed by her Honour in the reasons for judgment (at [110]) explicitly invoked the criminal standard of proof prescribed by s 141 of the Evidence Act. It was an odd turn of phrase to use in civil proceedings.
There may be a rational explanation for the apparent anomaly and the appeal may eventually fail, but the explanation is not so readily apparent at this premature stage that it can be logically contended the appeal lacks any reasonable prospect of success. The primary judge’s reference to the civil standard of proof earlier in the reasons for judgment (at [25], [33] and [34]) does not necessarily mean, as the respondent asserts, that her Honour could not have later fallen into inadvertent error when applying the law (at [110]), where her Honour seems to be discussing her level of satisfaction about a material fact rather than using the phrase to parody the appellant’s evidence.
The application for summary dismissal is dismissed.
Security for costs
The alternative application for security for costs is premised upon the respondent’s lawyer’s evidence to this effect:
23.Throughout the course of the Initial Proceeding, the Appellant was in receipt of funding from Victoria Legal Aid and did not incur any legal costs.
24.Conversely, the Respondent was privately represented throughout the course of the Initial Proceeding and incurred significant legal and professional expenses.
25.Following Her Honour’s delivery of judgement in the Initial Proceeding on 31 August 2022, the Respondent had an opportunity to make an application for costs but elected not to do so.
26.I have been sent a costs disclosure document from [the appellant’s counsel], revealing the projected costs of defending the Appeal Proceeding, estimating the costs at $18,920.
The narrative about the costs incurred in connection with the original proceedings (at [23]–[25]) is quite irrelevant to the costs of the appeal.
Naturally, the respondent will incur legal costs in the appeal if he retains legal representation, but the Act provides that parties shall ordinarily bear their own costs of proceedings (s 117(1)). The respondent bears the onus of demonstrating his entitlement to an order securing his costs of the appeal against the appellant in the face of that orthodoxy.
The factors which ordinarily influence the determination of an application for security were enumerated by the Full Court in Frazier & Valdez (2016) FLC 93-729 at [12], but many of those factors are now recited within r 12.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Significantly, none of those factors was addressed by the respondent in the evidence he adduced in support of his application. However, the respondent made these submissions in support of the application:
26.The Respondent submits the absence of any real prospect of success R.12.02(2)(b) of the Rules, in the circumstances of this case, provides in and of itself, an overwhelming reason to order security for costs.
27.The Respondent further submits the appeal is not a genuine application r.12.02(2)(c) and has been brought in bad faith.
Such bare propositions are rejected because they wrongly assume the incontrovertible strength of the arguments already rejected in dealing with the summary dismissal application. There being no proper evidentiary foundation for the application for security, it is dismissed.
Disposition
The Application in an Appeal filed on 8 November 2022 is dismissed
As the appellant is self-represented, she has no costs to recoup and so there will be no order for costs of the application.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 30 November 2022
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