Brathwell & Brathwell (No 2)
[2024] FedCFamC1A 13
•20 February 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Brathwell & Brathwell (No 2) [2024] FedCFamC1A 13
Appeal from: Brathwell & Brathwell (No 3) [2023] FedCFamC2F 1164 Appeal number: NAA 255 of 2023 File number: BRC 7200 of 2015 Judgment of: MCCLELLAND DCJ Date of judgment: 20 February 2024 Catchwords: FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where the appellant failed to file his Amended Notice of Appeal and Summary of Argument– Notice given pursuant to r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the first respondent filed an Application in an Appeal seeking that the appeal be dismissed pursuant to r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and that the appellant pay their costs – The appellant’s oral application to adjourn the appeal is dismissed – Appeal dismissed pursuant to r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – The respondent may file an application for costs pursuant to r 13.54 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). Legislation: Family Law Act 1975 (Cth) s 106A
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32(3)(f), 67, 69
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.34, 13.45, 13.53, 13.54
Cases cited: Aon Risk Services Australia v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Brathwell & Brathwell [2022] FedCFamC1A 166
Zubair v Minister for Immigration & Anor [2017] FCCA 2905
Number of paragraphs: 46 Date of hearing: 20 February 2024 Place: Brisbane (via videolink) The Appellant: Litigant in person Solicitor for the First Respondent: Mr Mylne, Turnbull Mylne Solicitors Solicitor for the Second Respondent: No appearance ORDERS
NAA 255 of 2023
BRC 7200 of 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BRATHWELL
Appellant
AND: MS BRATHWELL
First Respondent
COMPANY C
Second Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
20 FEBRUARY 2024
THE COURT ORDERS THAT:
1.The appellant’s oral application to adjourn the appeal is dismissed.
2.The Notice of Appeal filed 14 September 2023 is dismissed pursuant to rule 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
3.The respondent may, if she chooses, file an application for costs pursuant to rule 13.54 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), together with a supporting affidavit and written submissions of no more than three (3) pages by no later than 4.00 pm on 19 March 2024.
4.In the event of the respondent filing an application for costs pursuant to rule 13.54 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the appellant is to file and serve his response, together with a supporting affidavit and written submissions of no more than three (3) pages by no later than 4.00 pm on 16 April 2024.
5.The matter will be listed on a date to be fixed for the purpose of considering any application by the respondent for costs pursuant to rule 13.54 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brathwell & Brathwell has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTMCCLELLAND DCJ:
This matter has been listed for hearing today in respect to a Notice of Appeal filed by Mr Brathwell (“the appellant”) on 14 September 2023. Consequent to the filing of the Notice of Appeal filed 14 September 2023, there have been various directions regarding the filing of documents associated with the appeal and specifically, a requirement for the appellant to file an Amended Notice of Appeal and a Summary of Argument by 20 December 2023 – both of which have not occurred.
As a result of those events not occurring, the respondent has filed an Application in an Appeal on 25 January 2024, seeking for the appeal to be dismissed pursuant to r 13.45 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
There has been no correspondence that the Court has received, nor that the respondent has received from the appellant indicating that the appellant intended to apply for an adjournment of today’s hearing.
THE APPELLANT’S ORAL APPLICATION FOR ADJOURNMENT
The appeal was listed for hearing at 10.00 am (AEST) / 11.00 am (AEDT). The Court waited to give an opportunity for the appellant to attend. At approximately 10.15 am (AEST), the appellant attended by way of telephone, rather than by way of Microsoft Teams and indicated that he sought an adjournment for the purpose of having the opportunity to formally file an Application in an Appeal seeking an adjournment of the proceedings and to file an affidavit in support of that application for an adjournment.
As I have indicated, the Court did not receive a notification of the appellant’s intention to make such an application, nor did the respondent. The conduct of the appellant, with the greatest respect to him, has been discourteous to both the Court and to the respondent. In making his oral application for an adjournment, the appellant relies on a report from his General Practitioner, Dr D dated 20 February 2024 (“the Report”), which I have marked as Exhibit “A” in these proceedings. The Report refers to a number of underlying conditions which have been ventilated before the Court, in substantial part, throughout the recent years of this litigation. I specifically refer to the following extract from the Report:
[The appellant] has had ongoing issues with [a hand injury on his dominant hand] … anytime [the appellant] tries to write/ type or use [his hand] for other things e.g. eat, the pen/utensil is forced against the broken joint and the pressure aggravates the exact location of his injury. He was instructed [in December 2023] to continue using [an aid] and refrain from using it to the maximum extent possible for a further month to allow it to heal.
(As per the original)
The appellant indicated that the injury to his hand occurred in October 2023. Even allowing for the period of the aid from December 2023 until late January 2024, the appellant’s submission that he was incapable of either penning or typing a short memorandum to the respondent and the Court advising them of his intention to seek an application for an adjournment, is unsupported by the Report.
Additionally, no explanation has been offered as to why the appellant was unable to arrange for a friend, associate or community legal centre to transcribe a short, dictated note advising the respondent and the Court of his intention.
BACKGROUND
The appellant’s oral application for an adjournment occurs in the following circumstances:
·On 27 July 2015, the appellant initiated the substantive proceedings.
·On 15 February 2018, the matter was set down for mention. The appellant failed to appear in court.
·On 22 February 2018, the matter was set down for a directions hearing. The appellant, once again, failed to appear.
·On 19 April 2018, the appellant appeared in person, however, the matter was adjourned as the appellant was unprepared.
·The Chief Judge made orders on 25 September 2019 for the appellant to attend the solicitor for the respondent to confer about disclosure and admitted facts. The appellant failed to attend that meeting.
·Trial directions were made on 14 November 2019. The appellant failed to file the relevant materials, including a consolidated affidavit or case outline document.
·The matter was set down for final hearing on 17 March 2020. The appellant failed to appear. His counsel, however, did appear and sought an adjournment on the basis that the appellant was unwell.
·The final hearing was relisted to commence on 11 April 2022. The appellant sought an adjournment on the first day. The final hearing was heard on an undefended basis.
·On 14 April 2022, final orders were made for the matrimonial home to be sold.
·On 9 and 12 May 2022, the appellant filed two Notices of Appeal against both final parenting and property settlement orders. On 10 October 2022, Tree J dismissed those appeals on the basis that the appellant had failed to file his Amended Notices of Appeal and Summaries of Argument.
The decision of Tree J makes it clear that, at least since 10 October 2022, the appellant has been on notice as to the consequences of failing to file an Amended Notice of Appeal and Summaries of Argument in accordance with the directions of the Court.
The following events, which occurred after the conclusion of the substantive property proceedings are also relevant.
On 26 October 2022, the wife filed an Application – Enforcement seeking the vacant possession of the former matrimonial home and for the wife to be appointed as the sole trustee to effect the sale of the property.
On 22 March 2023, a judicial registrar granted the wife’s Application – Enforcement for the appellant to vacate the parties’ matrimonial home and give the respondent wife sole possession of the property for the purpose of placing that property on the market.
On 12 April 2023, the appellant filed an Application for Review of orders made by the judicial registrar.
On 17 August 2023, the matter was set down for the review hearing before the primary judge for the purpose of addressing the appellant’s application to review the judicial registrar’s decision dated 22 March 2023. Consistent with his past conduct, the appellant attended on the morning of that hearing and sought to rely on an Application in a Proceeding, filed at 11.15 pm on the night before seeking to adjourn the review hearing.
The decision of the primary judge dated 17 August 2023 sets out his reasons for rejecting the appellant’s argument, including at [116]–[118] in which the primary judge stated as follows:
116.I will go to the appeal decision of Tree J delivered 10 October 2022 who upheld the original orders made by Judge Middleton. At paragraph 9, Tree J set out the husband’s medical conditions. He said this:
The appellant filed an affidavit on 13 November 2019 and on page 81 of that affidavit, the appellant annexes a letter dated 7 November 2019 from a doctor setting out that the appellant suffers from – at that time – the following medical conditions: [various medical conditions/aches and pains, some requiring medical treatment].
117. What is occurring seems to be a pattern of behaviour in seeking to delay the proceedings.
118. And the judgment of Tree J from paragraph 4 sets out Judge Middleton’s history of proceedings in which there is just delay after delay after delay.
In the context of that background and where the medical evidence presented by the appellant, which has been received into evidence today, does not in any way justify the discourtesy of the appellant in failing to notify the respondent and in failing to notify the Court of his intention to make an application to adjourn today’s proceedings, I dismiss the appellant’s oral application for an adjournment of today’s proceedings.
THE APPEAL
The appellant, who appears unrepresented, has appealed against orders made by a Judge of the Federal Circuit and Family Court of Australia (Division 2) (“the primary judge”) on 17 August 2023. As earlier noted, the proceedings related to the appellant’s Application for Review of a registrar’s orders that the appellant vacate the parties’ matrimonial home and give the respondent wife sole possession of the property for the purpose of placing the property on the market. It is common ground that the property has been sold, albeit settlement is to occur later this month.
The appellant has failed to file his Amended Notice of Appeal and Summary of Argument in accordance with orders made by the Court on 18 October 2023. This is despite further correspondence being sent to the appellant, notifying him of the possible consequences of that, including the prospect of the proceedings being dismissed.
In response, on 25 January 2024, the respondent filed an Application in an Appeal, seeking that the appeal be dismissed due to the appellant’s failure to comply with the court orders.
Earlier today, shortly after the commencement of these proceedings, I considered an oral application by the appellant for the proceedings to be adjourned so that he could formally file an application for an adjournment supported by an affidavit. For reasons which I gave earlier, I dismissed that oral application. In that oral application, however, I set out the procedural history of the number of occasions where the appellant has either failed to appear in the proceedings or has sought an adjournment. In this decision, I refer to that chronology.
I note that the appellant’s oral application to adjourn the review hearing before the primary judge on 17 August 2023 was made a little earlier than it has been made in today’s proceedings – being 11.15 pm on the night before the hearing date. The documentation filed by the appellant included an affidavit that annexed the following medical certificate from late July 2023:
…
[The appellant] was responsible for handling many things on behalf of his mother, including during the above period of illness prior to her passing. He is also now responsible for many things following her death. Naturally, he is also profoundly grieving the loss of his mother, and has to handle such matters at the same time as trying to process her death.
[The appellant] has been unfit and unable to handle any legal matters during the above period and remains so including for the above reasons.
[The appellant] has nobody else who can represent him in his legal matters.
I would respectfully request that his legal matters be adjourned for at least 4 weeks to enable [the appellant] to grieve his mother’s passing and deal with all related matters.
The primary judge dismissed the appellant’s application for an adjournment and delivered ex tempore reasons on that day. In doing so, his Honour referred to the following extract from Aon Risk Services Australia v Australian National University (2009) 239 CLR 175 at [5] (“Aon Risk”):
In the proper exercise of the primary judge’s discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU’s statement of claim should not have been allowed. The discretion of the primary judge miscarried.
His Honour also referred to Zubair v Minister for Immigration & Anor [2017] FCCA 2905, as follows:
7.In relation to the medical certificate, there are judgments of the Federal Court and this Court that establish that a person alleging a medical condition and seeking to rely upon that medical condition for the grant of an indulgence, such as an adjournment, needs to provide sworn evidence to the Court concerning the medical condition … Those authorities also make the point that any medical certificate ought to say that the person, the subject of the medical certificate, is unfit and why they are unfit and, in particular, why they are unfit to attend any required Court attendance.
…
12.The court must also take into account when determining whether or not to grant leave to allow an adjournment:
a)that the paramount consideration remains the doing of justice between the parties but that a just resolution must have regard to any relevant legislative purpose or object;
b) modern principles of case management;
c) the avoidance of undue delay; and
d) the wastage of public resources.
…
In his orders, consequent to dismissing the oral application for adjournment, the primary judge appointed a trustee pursuant to s 106A of the Family Law Act 1975 (Cth) to give effect to the sale of the former matrimonial home. The appellant was also ordered to vacate the property within 21 days of the date of the orders. In the event that the appellant failed to vacate the property, a warrant for possession came into effect. The primary judge indicated that the distribution of the proceeds of sale for the property would reflect those made in the final orders of 14 April 2022. The appellant was also ordered to pay the costs of the respondent in the sum of $15,000.
On 14 September 2023, the appellant filed his Notice of Appeal.
The matter was listed for a procedural hearing before an appeal judicial registrar on 18 October 2023. The appellant made an oral application to adjourn the procedural hearing and filed an affidavit in support, which annexed the following medical certificate from October 2023:
[The appellant] (in addition to other medical conditions and injuries – previously advised) a [hand injury on his dominant hand] (confirmed by radiograph [in October 2023]).
He has been instructed to limit the use of his [dominant hand], including writing, typing, lifting or any other activity that aggravates his injury and prevents healing for the next 6 weeks.
It is therefore requested that he be excused from attending any legal matters that require him to write or type for the above period.
The appeal judicial registrar delivered ex tempore reasons on 18 October 2023, dismissing the appellant’s oral application for the adjournment of the procedural hearing. I note there has been no Application for Review of that decision. Orders were further made for the filing of an electronic transcript by 14 December 2023, for the appellant to file his Amended Notice of Appeal and Summary of Argument by 20 December 2023, and for the respondent to file their Summary of Argument by 25 January 2024. In circumstances where there has been no Summary of Argument filed by the appellant, understandably, the respondent has not filed a Summary of Argument as required by the orders dated 18 October 2023.
The appellant did, however, file the electronic transcript to the Northern Appeals Registry by the due date. However, as previously indicated, he failed to file his Amended Notice of Appeal or his Summary of Argument by 20 December 2023. This is despite the fact that the Court has, by way of correspondence firstly, on 2 November 2023, reminded the parties of their obligations pursuant to the orders made on 18 October 2023, and further, on 22 December 2023, where the following notice was sent pursuant to r 13.45(3) of the Rules:
… Notice pursuant to Rule 13.45(3)
I note that the following non-compliance by the Appellant with the order of the Court made on 18 October 2023 has not been remedied:
•The Appellant to file and serve the Summary of Argument and List of Authorities by 20 December 2023.
Enclosed is Family Law Practice Direction – Appeals (Fam-Appeals), which sets out the procedure for family law appeals – refer paragraph 11.
I draw to your attention Section 32(3)(f)(i) of the Federal Circuit and Family Court of Australia [Act] 2021 (Cth). Pursuant to that section, the Court may dismiss an appeal for failure to comply with a direction of the Court.
Rule 13.45 of the Rules sets out the procedure for considering dismissal of an appeal for non-compliance. Pursuant to sub-rule 13.45(3) the Court may make an order under sub-rule (2) on its own initiative.
This correspondence serves as written notice that the Court will consider whether to dismiss the appeal at the hearing listed on Tuesday 20 February 2024 at 10.00am (AEST – Qld time) / 11.00am (AEDT).
Should a party fail to attend the hearing on the date detailed above orders may be made in their absence.
I note that until the appellant remedies their default the other parties are not required to file their summaries of argument or list of authorities unless they choose to do so in respect of costs of the appeal should the appeal be dismissed. appeal judicial registrar
(Emphasis in original)
Rule 13.45(3) of the Rules, as highlighted below, provides:
(1) This rule applies if:
a. An 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 Family Law Regulations; or
ii.Complied with an order in relation to the appeal (including and application for leave to appeal or any other 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 of the order imposing the requirement is not complied with; or
b. If the defaulting party is the respondent:
i.Fix a time by which a requirement is to be met and order that the appeal or application will proceed if the order imposing the requirement is not complied with; or
ii. Proceed to hear the appeal or application.
(3)The court may make an order under subrule (2) on its own initiative if, at least 14 days before making the order, written notice has been given to the parties about the date and time the court will consider whether to make the order.
(4)An application for costs in relation to an appeal or application dismissed under this rule must be made within 28 days after the dismissal.
(Emphasis added)
In his submissions this morning, the appellant went to some lengths, seeking to argue that the letter sent to him on 22 December 2023 justified his inaction in filing those documents until and including the commencement of the hearing today on 20 February 2024. With respect to the appellant, I found his arguments perverse, particularly in circumstances where a similar issue had arisen and was the subject of consideration in a decision by Tree J on 10 October 2023: Brathwell & Brathwell [2022] FedCFamC1A 166. In that decision, Tree J dismissed the appellant’s appeals in circumstances where, again, the appellant had failed to file his Amended Notice of Appeal and Summary of Argument. In doing so, Tree J advised the appellant in his reasons for judgment at [7] of the following:
On 22 August 2022, the Court wrote to the appellant notifying him of his non-compliance, and alerted him to the prospect that on 5 October 2022 [the day set down for the appeal], his appeals may be dismissed because of it. Notwithstanding the lapse of another six weeks, still nothing was filed by the appellant.
Substituting dates, that situation precisely applies to the situation that is now before the Court today. The appellant was specifically advised of similar consequences, which had previously occurred to him as a result of the orders made by Tree J. In other words, the appellant has been on notice of the potential consequences of his failing to comply with the orders made on 18 October 2023, and despite being on notice, has done nothing to rectify the situation, nor has he made an Application in an Appeal seeking relief from those orders pursuant to, for example, r 1.34 of the Rules.
Essentially, the appellant’s argument following his inaction in the period subsequent to the direction on 18 October 2023, and despite receiving the notice sent to him on 22 December 2023, and his further inaction after receiving the respondent’s Application in an Appeal filed 25 January 2024, is that he suffers from ongoing disabilities, including grief related to the unfortunate death of his mother in the middle of last year. Most significantly, he refers to an injury on his dominant hand, which was suffered by the appellant prior to the directions hearing on 18 October 2023.
The appellant has indicated that the Report refers to a number of medical conditions which both predated his efforts in filing his Notice of Appeal on 14 September 2023, and also, ongoing disabilities from which he suffered in the period subsequent to that time. It is to be noted, as I have pointed out to the appellant, that despite his reference to ongoing disabilities that he has suffered from in the past, on 14 September 2023, he filed a Notice of Appeal setting out some 61 separate grounds of appeal. He was also capable of obtaining and filing the transcript in accordance with the directions made by the registrar in December 2023.
I appreciate that suffering from illness including injury to his dominant hand, may impede a party’s ability to prepare for hearing – in which case, the appropriate response is to file an Application in an Appeal either, seeking relief from the effect of non-compliance pursuant to r 1.34 of the Rules, or alternatively, to seek an extension of time. No such application has been filed by the appellant, nor, until the morning of the hearing, has the respondent or the Court been notified of an intention by the appellant to file such an application.
In terms of the relevant legislation, s 32(3)(f) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA”) empowers the Court to dismiss an appeal for failure of a party to comply with a direction. An additional head of power is contained in s 69 of the FCFCOA, which provides (sub-section (1)):
The Federal Circuit and Family Court of Australia (Division 1) or a Judge may give directions about the practice and procedure to be followed in relation to a civil proceeding, or any part of a civil proceeding, before the Court.
The relevant directions were made by a registrar on 18 October 2023. Relevantly, s 69(4) of the FCFCOA sets out relevant powers of the Court in the event of non-compliance, which includes the power to:
(a) dismiss the proceeding in whole or in part;
(b) strike out, amend or limit any part of a party's claim or defence;
(c) disallow or reject any evidence;
(d) award costs against a party;
(e)order that costs awarded against a party are to be assessed on an indemnity basis or otherwise.
(Emphasis added)
Those powers are qualified by the fact that r 13.45(3) of the Rules specifies that the appellant must be given at least 14 days’ notice of the possibility of the proceedings being dismissed. As I have indicated, the appellant was given that notice by way of email sent to him from the Court on 22 December 2023, and has done nothing since that time – save to attend the appeal hearing 15 minutes late to seek an oral adjournment on the basis of the Report of his general practitioner.
Aon Risk makes clear that, in exercising powers to dismiss proceedings as a result of non-compliance with directions, the Court is required to balance the justice of each individual litigant with the efficient management of the Court, including considering its impact on other litigants.
Those principles set out in Aon Risk are reflected in s 67 of the FCFCOA, which provides that proceedings are to be conducted in accordance with the “overarching purpose”, which is defined as follows:
(1)The overarching purpose of the family law practice and procedure provisions is to facilitate the just resolution of disputes:
(a) according to law; and
(b) as quickly, inexpensively and efficiently as possible.
…
(2)Without limiting subsection (1), the overarching purpose includes the following objectives:
(a)the just determination of all proceedings before the Federal Circuit and Family Court of Australia (Division 1);
(b)the efficient use of the judicial and administrative resources available for the purposes of the Court;
(c) the efficient disposal of the Court's overall caseload;
(d)the disposal of all proceedings in a timely manner;
(e)the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute.
(3)The family law practice and procedure provisions must be interpreted and applied, and any power conferred or duty imposed by them (including the power to make Rules of Court) must be exercised or carried out, in the way that best promotes the overarching purpose.
(4)The family law practice and procedure provisions are the following, so far as they apply in relation to civil proceedings:
(a) the Rules of Court;
(b)any other provision made by or under this Act, or any other Act, with respect to the practice and procedure of the Federal Circuit and Family Court of Australia (Division 1).
Having regard to those competing interests, that is, of the appellant in the specific facts of this case, the interests of the respondent, the interests of the efficient use of judicial and administrative resources, and the efficient disposal of the Court’s overall case load, and finally, ensuring the resolution of the matter in a timely manner and at proportionate costs, I have determined that it is appropriate to dismiss these proceedings.
In so determining, I have had regard to the extensive history of either non-appearance and/or adjournment applications that have been made by the appellant, which have resulted in extensive delay in the proceedings.
Additionally, I have had regard to the fact that clearly, since the decision of Tree J dated 10 October 2023, the appellant has been put on notice as to the consequence of failing to comply with directions regarding the orderly progress of appeals, including, specifically, the consequence of failing to file an Amended Notice of Appeal and Summary of Argument.
Having regard to those matters, and having regard to the statutory powers to which I have referred, and considering those competing considerations, I determine that it is appropriate in the circumstances of this particular case, for the appeal to be dismissed.
COSTS
In respect to the issue of costs, I note that the respondent has failed to comply with the provisions of r 13.53 of the Rules – which provides that a party who intends to seek costs at the conclusion of an appeal, subject to the outcome of the appeal, must seven days prior to the appeal, file a schedule of costs (sub-section (a)).
I note, however, that r 13.54 of the Rules empowers a party, rather than apply for costs at the conclusion of the hearing of an appeal, to make an application for costs within 28 days of an appeal being dismissed.
In circumstances where I have dismissed the appeal pursuant to r 13.45 of the Rules, I grant the respondent leave to file an application for costs within 28 days of the date of these orders. That application for costs will be dealt with in the normal course of business of the Court, on a date to be advised in due course.
I certify that the preceding forty-six (46) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 27 February 2024
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