Bukari & Bukari (No 5)
[2023] FedCFamC1A 108
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bukari & Bukari (No 5) [2023] FedCFamC1A 108
Appeal from: Bukari & Bukari(No 3) [2023] FedCFamC2F 323 Appeal number: NAA 77 of 2023 File number: PAC 3346 of 2020 Judgment of: AUSTIN J Date of judgment: 4 July 2023 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Reinstatement – Where the husband’s appeal was deemed abandoned due to his failure to file transcript in the time directed by the appeal registrar’s procedural orders – Where the husband filed an application seeking reinstatement of the appeal – Where the husband sought to set aside the appeal registrar’s decision to abandon the appeal – Where the registrar did not make any such decision – Where the husband’s appeal was abandoned by operation of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the reason for non-compliance is reasonable – Where it is necessary to advert to the prospects of the appeal – Where each ground of appeal constitutes an attack on the primary judge’s decision to refuse the husband’s application for an adjournment – Where a decision not to adjourn is immune from appeal – Where it would be futile to re-instate the appeal – Applications dismissed – Where the appeal remains abandoned – Husband ordered to pay the wife’s party/party costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) Pt VIII, ss 102NA, 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 32, 46
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 5.07, 12.17, 13.22
Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Kirk v Industrial Court of NSW (2010) 239 CLR 531; [2010] HCA 1
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152; [2006] HCA 63
Tabb & Tabb [2017] FamCAFC 169
Vakauta v Kelly (1989) 167 CLR 568; [2000] HCA 63
Number of paragraphs: 40 Date of hearing: 4 July 2023 Place: Newcastle (via Microsoft Teams) Solicitor for the Applicant: Atila Lawyers Solicitor for the Respondent: AS Family Lawyers ORDERS
NAA 77 of 2023
PAC 3346 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR BUKARI
Applicant
AND: MS BUKARI
Respondent
order made by:
AUSTIN J
DATE OF ORDER:
4 July 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 23 June 2023 is dismissed.
2.The Application in an Appeal filed on 28 June 2023 is dismissed.
3.The applicant shall pay the respondent’s party/party costs of and incidental to these applications, fixed in the sum of $2,000.
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 a pseudonym Bukari & Bukari has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
Before the Court for consideration are two interlocutory applications.
The first is an application to re-instate an appeal, deemed abandoned by reason of the applicant husband’s failure to file transcript in the time ordered by the appeal registrar (r 13.22(2) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
The second is an application to review and amend the appeal registrar’s procedural orders in the appeal, presuming the first application succeeds and the appeal is re-instated.
For the reasons which follow, both applications are dismissed.
Background
On 24 March 2023, a judge of the Federal Circuit and Family Court of Australia (Division 2) made property settlement orders between the parties under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”). In summary, the orders provide for the sale of two parcels of real property and the division of the net proceeds of sale between the parties in proportions of 64/36 per cent favouring the wife.
The husband appealed from those orders on 31 March 2023, but amended the appeal shortly afterwards on 3 April 2023 (“the principal appeal”).
The husband applied to stay the appealed orders pending the determination of the appeal, which stay application was partly successful before the primary judge on 28 April 2023.
The husband appealed from the stay orders on 1 May 2023, which he has since amended (“the stay appeal”).
The husband was invited to show cause why the stay appeal should not be summarily dismissed, following which hearing the appeal registrar made orders on 16 May 2023 dismissing the stay appeal. The husband sought judicial review of the decision and, on 25 May 2023, Schonell J set aside the orders made by the appeal registrar and ordered that the two appeals be consolidated and heard together before his Honour on 25 July 2023.
In the meantime, on 24 May 2023, the appeal registrar conducted a procedural hearing in relation to the principal appeal. Among the orders made by the appeal registrar was an order compelling the husband to file the transcript of the trial conducted before the primary judge by 21 June 2023 (Order 6), in default of which it was noted the appeal would be deemed abandoned under the Rules. The trial spanned three days, so the orders obliged the husband to file three days of transcript.
On 19 June 2023, just before the time for filing the transcript expired, the husband’s lawyers wrote to the appeal registrar asking for dispensation of the requirement to file transcript for the whole of the trial. They asked that the requirement to file transcript be confined to only the third and last day of the trial.
The appeal registrar wrote back on the same day. Understandably, he informed the husband’s lawyers that the prior procedural orders could not be amended administratively on the strength of assertions made in correspondence on behalf of the husband. The wife had not given her consent to the administrative amendment of the orders proposed by him.
Regardless, the husband’s lawyers then filed the transcript for only the third and last day of trial but, because the whole of the transcript was not filed within time, the principal appeal was deemed abandoned under the Rules.
By an Application in an Appeal filed on 23 June 2023 (“the first application”), the husband seeks the re-instatement of the principal appeal. He also mistakenly seeks that the appeal registrar’s decision to abandon the appeal is set aside, but the appeal registrar made no such decision. The appeal registrar ordered the transcript to be filed by a certain date, but his default in compliance with that order meant the appeal was deemed abandoned by operation of the Rules.
By an Application in an Appeal filed on 28 June 2023 (“the second application”), the husband seeks to review and discharge the orders made by the appeal registrar on 24 May 2023 which imposed the obligation to file transcript for the whole of the trial. This application is necessary because, if the appeal is re-instated, without such supplementary relief from the obligation to file the transcript of the whole trial, the appeal would be promptly deemed abandoned again by the husband’s failure to comply with the appeal registrar’s unchanged orders.
In addition, the husband seeks in the second application an “Order to for an extension of time/leave to appeal (sic)”. The meaning of this part of the application was not clear because the principal appeal was filed within time and, if re-instated, does not require the grant of leave to prosecute it. Presumably the request for an extension of time is directed to the need for the grant of leave to bring the application to review the appeal registrar’s procedural orders out of time.
The two applications were supported by the husband’s two affidavits, filed respectively on 23 June 2023 and 28 June 2023.
Shortly after the appeal was deemed abandoned, the husband emailed his Summary of Argument to the appeal registrar for filing. It was not filed because the appeal no longer existed, but the Summary of Argument is now admitted into evidence (Exhibit A) as it elaborates the grounds of appeal the husband intends to pursue if the appeal is re-instated. The parties agreed.
The wife filed an affidavit in rebuttal of the husband’s applications on 3 July 2023 (the day before the hearing), but it was filed and served late (r 5.07 of the Rules). The husband objected to it and the wife conceded it was unnecessary to rely upon it.
Legal principles
There is a distinction between, on the one hand, applications to extend the time within which to file an appeal and, on the other, an application to extend the time for taking some procedural step within an appeal already competently lodged (Jackamarra v Krakouer (1998) 195 CLR 516). However, in Tabb & Tabb [2017] FamCAFC 169 at [9]–[14], Kent J reviewed the authorities dealing with applications to re-instate an abandoned appeal and considered they have much in common with applications to extend the time for filing an appeal.
By reference to Full Court authorities, the following factors are liable to influence the exercise of discretion about whether or not to reinstate appeals which are deemed abandoned by reason of non-compliance with orders:
(a)the extent of the delay, whether there is an adequate explanation for it, and any relevant consequences of the delay;
(b)the nature of the litigation and the consequences for the parties of the grant, or refusal, of the application;
(c)the prospects of the appeal succeeding if reinstated; and
(d)whether refusal of the re-instatement application would constitute an injustice.
Such considerations influence the exercise of discretion about whether or not to grant the husband’s first application by re-instating the appeal. If re-instated, similar considerations influence the exercise of discretion about whether or not to entertain and grant the husband’s second application, which is an application to extend time within which to review the appeal registrar’s decision requiring the husband to file and serve transcript for the whole of the trial.
Disposition
The delay in this instance is not significant. The husband partially complied with the appeal registrar’s orders within time and, in respect of his partial non-compliance, sought relief by way of re-instatement within two days of the default. If re-instated, the appeal can still be heard on 25 July 2023, as originally scheduled.
The reason given by the husband for non-compliance with the appeal registrar’s orders is reasonable. His principal complaint in the appeal is that he was denied procedural fairness by the primary judge. He alleges the deprivation occurred on the third and last day of trial (being 25 January 2023) – hence his desire to only incur the cost of transcript for that single day. The husband deposed this in his first affidavit read in support of this application:
13.Simply, this is our appeal against procedural fairness of hearing dated 25 January 2023 and we should be deciding what documents are relevant and will be relied upon.
14.My ex-solicitor requested that the Digital Transcript of Proceedings before [the primary judge] for the dates of 17 October 2022 and 5 December 2022 be excluded from the digital appeal book.
15.In this regard we note that the proceedings on 17 October 2022 concerned mainly the settlement of the parenting proceedings and that the property proceedings were adjourned to 5 December 2022.
16.The proceedings on 5 December 2022, the property hearing was adjourned to 25 January 2023 due to the hospitalisation of the husband.
17.My appeal is premised on a denial of procedural fairness arising from the proceedings of 25 January 2023, the proceedings of 17 October 2022 and 5 December 2022 are irrelevant to the appeal. The 17 October 2022 proceedings relate to the parenting matter and an adjournment of the property proceedings and the 5 December 2022 proceedings pertains to a further adjournment of the property proceedings. I am having to order the transcripts for 17 October 2022 and 5 December 2022 places an unnecessary cost and financial hardship upon me that is disproportionate with the relevance of the transcripts for those dates.
The appeal registrar did not reject the explanation advanced by the husband for the default. Rather, the appeal registrar simply declined to amend the procedural orders pursuant to a unilateral request made by the husband’s lawyers via correspondence.
There could be no reasonable opposition to the husband being relieved of the obligation to file transcript for the first two days of trial, which transcript he contends is irrelevant to the appeal. Of course, the husband would then be bound by his concession. He could not be permitted to later contend in the appeal for his deprivation of procedural fairness on anything other than the last day of trial.
Those considerations might well inform the exercise of discretion to re-instate the principal appeal and to partly relieve the husband from compliance with the procedural orders made by the appeal registrar about filing and serving transcript – if the appeal was not bereft of any reasonable prospects of success – so it is necessary to now advert to the prospects of the principal appeal.
It is apparent from the husband’s Summary of Argument that every ground of appeal constitutes an attack upon the primary judge’s decision to refuse the husband’s application for an adjournment at the commencement of the third day of trial, which decision is immune from appeal (s 26(2)(b)(ii) and s 26(2)(b)(iii) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)). The appeal is notionally, but not really, directed to the property settlement orders made by the primary judge to finalise the financial cause. At best, the husband only claims the property settlement orders are vitiated by the procedural decision to refuse the adjournment but, if that procedural decision cannot be challenged, nor can the final judgment on that solitary basis.
When alerted to that reality, the husband sought an adjournment of this hearing so he could take further advice about the efficacy of his applications, but the adjournment application was refused. The husband could not articulate any advantage that could reasonably accrue to him by granting the adjournment, nor any disadvantage that could accrue to him by its refusal. He commendably agreed that an adjournment would be unduly prejudicial to the wife. After all, the applications being heard are his own.
Turning then to the proposed appeal, Grounds 1 and 2 allege the deprivation of procedural fairness and a denial of natural justice, as the refusal of the adjournment prevented the husband from cross-examining the wife due to the restriction which applied under s 102NA of the Act.
The terms “natural justice” and “procedural fairness” are used interchangeably (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]), so the two grounds complain of the same thing. The complaint is misconceived because the requirement for procedural fairness pertains only to the fairness of the process, not to the fairness of the outcome (SZBEL v Minister for Immigration and Multicultural Affairs (2006) 228 CLR 152 at [25]). The husband was heard on the question of the adjournment and was thereby afforded procedural fairness. The adjournment was refused, but the forensic consequences which flow from a correct interlocutory decision cannot be the subject of a complaint of procedural unfairness.
Even if the primary judge did arguably err by refusing the adjournment, the decision cannot be appealed – at least absent complaints of jurisdictional error or error on the face of the record (Kirk v Industrial Court of NSW (2010) 239 CLR 531 at [55]–[56], [78]–[79], [90] and [98]–[108]), which complaints are not made in this case.
Ground 3 complains the primary judge gave inadequate reasons for the decision to refuse the adjournment, but that does not matter if the interlocutory decision is immune from appeal.
Ground 4 complains the primary judge was biased against the husband, by his Honour having pre-judged the adjournment application by determining to refuse it. That could not be correct because the primary judge could not pre-judge an unforeseen oral adjournment application. It was not made until the morning of the third day of trial. The submissions made in support of this complaint within the husband’s Summary of Argument amount to little more than observations that the adjournment application was decided adversely. The submissions implicitly accept that debate ensued between the primary judge and the husband’s lawyer about the merit of the adjournment application. Judicial bias, whether actual or apprehended, is not evident merely from a decision being made against the complaining litigant’s interests.
The husband further submitted this in his Summary of Argument:
25.Further instances of bias by His Honor against the husband were apparent during the conducted of the pre-trial procedures. …
(As per the original)
He goes on to elaborate the complaint to mean that, at earlier times in the litigation, the wife was permitted to issue subpoenas but he was not. Even if that was so, and even if it is assumed it was the primary judge (and not other judges or registrars) who made those procedural decisions, the judicial bias which the husband was thereby caused to suspect did not convert to any application for the primary judge’s disqualification – on the first, second or third days of trial or at any time beforehand. Any such complaint of bias was necessarily waived (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344, 357 and 360; Vakauta v Kelly (1989) 167 CLR 568 at 577–579 and 586–588).
Grounds 5, 6, 7 and 8 comprise generic complaints about the decision to refuse the adjournment being an arbitrary exercise of discretion, an abuse of discretion, a plainly wrong decision, an unjust decision, and a decision not made in the best interests of justice. Even if all those allegations are correct, which is not to accept the fact it is so, the adjournment decision cannot support an appeal.
It follows from the above analysis of the proposed appeal that it would be futile to re-instate it. The proposed appeal enjoys no reasonable prospects of success and, if re-instated, would be amenable to summary dismissal by a single judge on that premise (ss 32(3)(b), 32(5) and 46(2) of the FCFCA Act). If not summarily dismissed once re-instated, the wife would then be compelled to endure the prejudicial cost of defending the appeal and the prejudicial delay in being able to enforce the primary judgment. Such prejudice should not be visited upon her.
The dismissal of the applications means the principal appeal remains abandoned. That raises another question about the futility of the stay appeal, which remains listed for hearing before Schonell J in the next few weeks. There is no apparent utility in hearing the stay appeal when there is no principal appeal. The husband was invited to consent to an order dismissing the stay appeal, but refused. What happens to the stay appeal will be up to Schonell J and the appeal registrar. It was not listed for consideration today.
The wife sought her party/party costs of the dismissed applications, which she assessed at $2,000. The application was made on the basis that both applications were wholly unsuccessful (s 117(2A)(e)). The husband did not oppose the application outright, as his only submission in rebuttal was the assessment is “excessive”. The submission is rejected. The husband is ordered to pay the wife’s party/party costs of the applications, fixed at $2,000 pursuant to r 12.17(1)(a) of the Rules.
I certify that the preceding forty (40) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 4 July 2023
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