Bukari & Bukari (No 4)
[2023] FedCFamC1A 84
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bukari & Bukari (No 4) [2023] FedCFamC1A 84
Appeal from: Orders made 16 May 2023 Appeal number(s): NAA 113 of 2023 File number(s): PAC 3346 of 2020 Judgment of: SCHONELL J Date of judgment: 26 May 2023 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Where the appellant sought a review of the appeal registrar’s decision to summarily dismiss the Notice of Appeal regarding a refusal to grant a stay by the primary judge – Where the appellant argued that not being able to appeal the stay application would render his appeal nugatory – Where the stay appeal should be heard with the primary appeal, which is consistent with the overarching purpose of family law practice and procedure – Orders made for the consolidation of the two appeals. Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67 Cases cited: Commission of Taxation v Myer Emporium Ltd (1986) 160 CLR 220 Number of paragraphs: 26 Date of hearing: 25 May 2023 Place: Sydney Solicitor for the Appellant: Atila Lawyers Counsel for the Respondent: Ms Yu Solicitor for the Respondent: AS Family Lawyers ORDERS
NAA 113 of 2023
PAC 3346 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BUKARI
Appellant
AND: MS BUKARI
Respondent
order made by:
SCHONELL J
DATE OF ORDER:
25 MAY 2023
IT IS ORDERED THAT:
1.Leave is granted to the appellant to make an oral application to set aside the order made today dismissing the Application in an Appeal filed 17 May 2023.
2.The order made today dismissing the appellant’s Application in an Appeal filed 17 May 2023 is set aside.
3.The orders made by the appeal registrar on 16 May 2023 are dismissed.
4.The appellant is directed to file an Amended Notice of Appeal in relation to the appeal filed on 1 May 2023 within 14 days.
5.This matter is referred to the appeal registrar to make directions for the purposes of consolidating the appeals (NAA 77 of 2023 and NAA 113 of 2023) such that they will both be heard on 25 July 2023.
IT IS FURTHER ORDERED IN CHAMBERS THAT:
6.The Application in an Appeal filed 17 May 2023 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).
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 Bukari & Bukari has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SCHONELL J:
On 24 March 2023, a judge of Division 2 of the Court delivered reasons and made final property orders consequent upon the breakdown of the parties’ relationship. On 31 March 2023, the appellant filed a Notice of Appeal and on 3 April 2023 an Amended Notice of Appeal from that judgment (“the primary appeal”).
On 14 April 2023, the appellant filed an application seeking a stay of the final property orders made on 24 March 2023. On 28 April 2023, the primary judge made various orders for the sale of real estate and otherwise dismissed the appellant’s stay application.
On 1 May 2023, the appellant filed a Notice of Appeal from the refusal to grant a stay (“the stay appeal”).
On 5 May 2023, the appeal registrar wrote to the appellant identifying various deficiencies with the Notice of Appeal in relation to the stay appeal, including that the appellant had not sought leave to appeal. In that letter, the appeal registrar gave notice that the matter would be listed for hearing on 12 May 2023 where the appellant should show cause as to why the stay appeal should not be summarily dismissed.
On 16 May 2023, the appeal registrar, following that hearing, summarily dismissed the stay appeal for lack of utility.
On 17 May 2023, the appellant filed an Application in an Appeal seeking to review the determination by the appeal registrar.
The primary appeal is listed for hearing before the Full Court on 25 July 2023.
The Application in an Appeal was listed at 9.30 am on 25 May 2023. The respondent appeared and there was no appearance for the appellant. The matter was called three times and still there was no appearance for the appellant. The Court then indicated that it would adjourn until 9.50 am. At 9.50 am the appellant had still not appeared, the matter was called again and there was no appearance. The Application in an Appeal was then dismissed.
At about 10.00 am there was an appearance by a solicitor for the appellant. The Court resumed shortly thereafter.
The appellant’s solicitor indicated he had recently been instructed and understood the matter was listed at 10.00 am. Leave was sought to make an oral application to set aside the prior orders dismissing the Application in an Appeal. The respondent conceded that it was a matter for the Court.
Leave to make such an application was granted and the earlier order was thereafter set aside.
The appellant’s solicitor submitted that if the appellant could not appeal the refusal to grant the stay then the appellant’s primary appeal would be rendered nugatory and further that the appellant would be denied the opportunity to purchase the properties. The appellant’s solicitor conceded that the Notice of Appeal in the stay appeal needed amending and that the appellant could file an amended Notice of Appeal in two weeks including any summary of argument. He submitted that the respondent should be given a further two weeks thereafter to respond. He submitted that the Amended Notice of Appeal could thereafter be listed for hearing before the Full Court.
The respondent submitted that there was no prejudice occasioned to the appellant as the proceeds of sale would be held in trust and that it was a waste of Court resources and contrary to the overarching purpose of family law practice for there to be two appeals.
In reply, the appellant’s solicitor repeated his submissions that the appellant or his daughter would be denied the opportunity to purchase the properties if the stay appeal were not heard before the primary appeal as he could not afford to purchase the properties on the current percentage entitlement as found by the primary judge but would be able to if the respondent received a lesser percentage entitlement. He placed reliance on the appellant’s affidavit filed 17 May 2023 which records as follows:
19. The appellant and/or our daughter [X] intend to purchase the properties instead. The appellant and/or our daughter [X] have exclusive rights to purchase the properties. His honour erred and states “The alternative orders on the stay sought by [Ms Bukari] would not prevent Mr [Bukari] and/or his adult daughter bidding at any auction to acquire the property should they so choose”.
The appellant’s solicitor conceded that there was no evidence that either the appellant or the daughter would be able to purchase the properties.
CONCLUSION
The Application in an Appeal involves a review of a determination made by the appeal registrar to dismiss the appellant’s Notice of Appeal in the stay appeal as it lacked utility. As such, the review is a de novo hearing.
There is no evidence that the appellant or his daughter have the capacity to purchase the respondent’s interest in the properties, the subject of the stay orders, at a lesser percentage whatever that might be. Nor was any lesser percentage suggested. The asserted “exclusive right to purchase the properties” was not made apparent.
There is no impediment to the appellant and/or his daughter purchasing the properties at auction. If either or both of them do so, there would be a change in the legal ownership of the properties to that which existed before the primary judge.
The High Court in Commission of Taxation v Myer Emporium Ltd (1986) 160 CLR 220 at 222–223 said:
…Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being nugatory: see Wilson v. Church [No.2]; Klinker Knitting Mills Ply. Ltd. v. L’Union Fire Accident and General Insurance Co. Ltd. Generally that will occur when, because of the respondent's financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed: see McBride v. Sandland [No.2].
(Footnotes omitted)
If what the appellant seeks to do comes about, then the appeal would have been rendered nugatory by the appellant’s own conduct. To suggest that is a basis for a stay is absurd.
It is the usual practice of the Court to consolidate the hearing of the primary appeal and the stay appeal. Thus, if the appeal registrar had not dismissed the stay appeal, then both would in the ordinary course have been listed together. That is, on 25 July 2023.
The appellant through his solicitor now concedes that the stay appeal is defective and requires amendment. There is no adequate explanation other than the fact that the appellant is now represented that explains why this was not attended to earlier.
He submitted that the appellant can file an Amended Notice of Appeal within two weeks. He also submitted that the appellant could also do all that was necessary to prepare for the appeal in that time including filing a Summary of Argument. One presumes this would include preparation of the appeal book and a transcript. He suggested that the respondent should then have a further two weeks to respond and that the appeal thereafter be listed for hearing before the Full Court.
By my assessment, that would assume, all directions having been complied with, that the appeal would be ready for listing after 22 June 2023.
Where the Court is able to hear and determine the primary appeal on 25 July 2023, then it is completely inconsistent with the overarching purpose of family law practice and procedure, which is to facilitate the just resolution of disputes as quickly, inexpensively and efficiently as possible (s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth), that there be two appeals in this matter that occur within weeks of each other.
Accordingly, I propose to dismiss the Application in an Appeal and direct the appellant to file an Amended Notice of Appeal within 14 days and consolidate the hearing of the stay appeal with the primary appeal, such that they both be heard on 25 July 2023. I will also request the appeal registrar to make such procedural directions as are necessary to give effect to these orders.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 26 May 2023
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