Bukari & Bukari (No 7)
[2023] FedCFamC1A 155
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Bukari & Bukari (No 7) [2023] FedCFamC1A 155
Appeal from: Bukari & Bukari (No 3) [2023] FedCFamC2F 323 Appeal number(s): NAA 77 of 2023 File number(s): PAC 3346 of 2020 Judgment of: SCHONELL J Date of judgment: 14 September 2023 Catchwords: FAMILY LAW – APPEAL – Application in an appeal – De novo hearing – Where the husband sought to review the appeal judicial registrar’s decision to not accept the husband’s Notice of Appeal for filing on the grounds of it being an abuse of process – Where the husband’s appeal had previously been deemed abandoned and reinstatement of the appeal was refused – Where the husband failed to engage with the principles of abuse of process – Where the Court is satisfied that the filing of the new Notice of Appeal would be an abuse of process – Application dismissed – Costs ordered against the husband in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Jackamarra v Krakouer and Anor (1998) 195 CLR 516; [1998] HCA 27
PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158
Bukari & Bukari (No 4) [2023] FedCFamC1A 84
Bukari & Bukari (No 5) [2023] FedCFamC1A 108
Telama & Telama [2023] FedCFamC1A 106
Tomlinson v Ramsay Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
Number of paragraphs: 37 Date of hearing: 8 September 2023 Place: Sydney Counsel for the Applicant: Mr Mando 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:
SCHONELL J
DATE OF ORDER:
14 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 22 August 2023 is dismissed.
2.The applicant husband pay the respondent wife’s cost assessed in the sum of $3,085 within 28 days.
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:
By Application in an Appeal filed 22 August 2023, the applicant husband (“the husband”) seeks to review a determination by the appeal judicial registrar to refuse to accept a Notice of Appeal for filing. This is the second appeal brought by the husband against the primary judge’s orders.
To properly deal with the arguments advanced by the parties, it is necessary to have regard to the history of the appeal and the various applications in an appeal that have all been filed by the husband, with the exception of one by the respondent wife (“the wife”) in which she successfully sought costs against the husband following the abandonment of the stay appeal.
BACKGROUND
On 24 March 2023, a judge of Division 2 of the Court delivered reasons for judgment and made final property orders.
The husband appealed that judgment by filing a Notice of Appeal on 31 March 2023 and subsequently an Amended Notice of Appeal on 3 April 2023 (“the first appeal”).
On 14 April 2023, the husband filed an application seeking a stay of the final property orders and a partial stay was granted by the primary judge on 28 April 2023.
On 1 May 2023, the husband filed a Notice of Appeal from the refusal to grant a stay (“the stay appeal”).
I note the following from my judgment in Bukari & Bukari (No 4) [2023] FedCFamC1A 84 delivered on 26 May 2023:
4.On 5 May 2023, the appeal [judicial] registrar wrote to the [husband] identifying various deficiencies with the Notice of Appeal in relation to the stay appeal, including that the [husband] had not sought leave to appeal. In that letter, the appeal [judicial] registrar gave notice that the matter would be listed for hearing on 12 May 2023 where the [husband] should show cause as to why the stay appeal should not be summarily dismissed.
5.On 16 May 2023, the appeal [judicial] registrar, following that hearing, summarily dismissed the stay appeal for lack of utility.
6.On 17 May 2023, the [husband] filed an Application in an Appeal seeking to review the determination by the appeal [judicial] registrar.
…
21.It is the usual practice of the Court to consolidate the hearing of the primary appeal and the stay appeal. Thus, if the appeal [judicial] registrar had not dismissed the stay appeal, then both would in the ordinary course have been listed together. That is, on 25 July 2023.
22.The [husband] 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 [husband] is now represented that explains why this was not attended to earlier.
…
25.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.
26.Accordingly, I propose to dismiss the Application in an Appeal and direct the [husband] 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 [judicial] registrar to make such procedural directions as are necessary to give effect to these orders.
On 24 May 2023, the appeal judicial registrar made a series of procedural orders including directing the husband to file a transcript by 21 June 2023, failing which the first appeal would be deemed abandoned under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”).
Justice Austin recorded the following in his judgment of Bukari & Bukari (No 5) [2023] FedCFamC1A 108 delivered on 4 July 2023:
11.On 19 June 2023, just before the time for filing the transcript expired, the husband’s lawyers wrote to the appeal [judicial] 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.
…
13.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 [first] appeal was deemed abandoned under the Rules.
14.By an Application in an Appeal filed on 23 June 2023 (“the first application”), the husband seeks the re-instatement of the [first] appeal. He also mistakenly seeks that the appeal [judicial] registrar’s decision to abandon the appeal is set aside, but the appeal [judicial] registrar made no such decision. The appeal [judicial] 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.
15.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 [judicial] 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 [judicial] registrar’s unchanged orders.
In determining the husband’s application, his Honour observed as follows:
23.The delay in this instance is not significant. The husband partially complied with the appeal [judicial] 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.
…
26.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.
27.Those considerations might well inform the exercise of discretion to re-instate the [first] appeal and to partly relieve the husband from compliance with the procedural orders made by the appeal [judicial] 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 [first] appeal.
His Honour thereafter considered the prospects of the appeal in light of each of the eight grounds and concluded:
38.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.
39.The dismissal of the applications means the [first] 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 [judicial] registrar. It was not listed for consideration today.
Despite the prescient statement made by Austin J, the husband did not consent to an order dismissing the stay appeal. Rather, on 10 July 2023, the stay appeal was deemed abandoned under the Rules due to the failure to file the transcript by the date ordered.
Notwithstanding the orders and findings of Austin J on 4 July 2023 and their consequence for the first appeal from the primary judge’s orders, on 21 July 2023, the husband attempted to file a further appeal from the primary judge’s orders (“the second appeal”).
On 24 July 2023, the appeal judicial registrar refused to permit the filing of the Notice of Appeal for the second appeal as an abuse of process, providing his reasons for doing so including referencing Tree J’s decision in Telama & Telama [2023] FedCFamC1A 106 (“Telama”).
On 16 August 2023, I heard an application for costs arising out of the abandonment of the stay appeal and ordered the payment of the wife’s costs.
On 22 August 2023, the husband filed an Application in an Appeal seeking a review of the appeal judicial registrar’s determination to refuse the filing of the Notice of Appeal.
DISCUSSION
There is little doubt that the hearing before me constitutes a de novo hearing.
Before me the husband argued that he should be granted an extension of time in which to file a Notice of Appeal, relying in part upon the observations of the High Court in Gallo v Dawson (1990) 93 ALR 479 and Jackamarra v Krakouer and Anor (1998) 195 CLR 516.
He also contended that the earlier Notice of Appeal for the first appeal was “wrong” (affidavit of husband filed 22 August 2023, paragraph 6), and that the current Notice of Appeal is “based on merits” (affidavit of husband filed 22 August 2023, paragraph 9). He made passing reference to Tree J’s decision of Telama, contending that it did not preclude him “from filing [a] correct Notice of Appeal based on merit” (affidavit of husband filed 22 August 2023, paragraph 8).
Almost the entirety of his submissions sought to engage with the principles in relation to an extension of time within which to file an appeal rather than the consequences of the orders and findings made by Austin J to which I have referred to earlier, or why this second appeal should be permitted to be filed by the invocation of principles of abuse of process.
With respect to those who prepared the husband’s Summary of Argument and made the submissions, the husband’s argument misses the point. Whilst the application is one that seeks to either review the appeal judicial registrar’s decision, leave to extend the time for filing an appeal or reinstate the appeal, the more fundamental issue is that of abuse of process by attempting to file a further Notice of Appeal from the primary judge’s determination.
In Telama, Tree J dealt with fairly similar circumstances where an appellant had filed a further Notice of Appeal in circumstances where the original Notice of Appeal was dismissed by the Court for non-compliance with orders.
His Honour in Telama observed as follows:
12.Rule 2.24(1)(e) permits the rejection of a document received for filing if, it “on its face, appears to the court to be an abuse of process, frivolous, scandalous or vexatious”. As to what may comprise an abuse of process, in Tomlinson v Ramsay Food Processing Pty Ltd (2015) 256 CLR 507, the plurality of the High Court said at [24]–[26]:
24.To explain contemporary adherence to the comparatively narrow principle in Ramsay v Pigram, it is appropriate also to explain the relationship between the doctrine of estoppel and the doctrine of abuse of process as it has since come to be recognised and applied in Australia. The doctrine of abuse of process is informed in part by similar considerations of finality and fairness. Applied to the assertion of rights or obligations, or to the raising of issues in successive proceedings, it overlaps with the doctrine of estoppel. Thus, the assertion of a right or obligation, or the raising of an issue of fact or law, in a subsequent proceeding can be simultaneously: (1) the subject of an estoppel which has resulted from a final judgment in an earlier proceeding; and (2) conduct which constitutes an abuse of process in the subsequent proceeding.
25.Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories, abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.
26.Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel…
13.Although this statement of principle arose in a very different context to the refusal to accept a second appeal for filing, there is no reason to doubt it is nonetheless of direct application to r 2.24(1)(e).
(Emphasis in original)
The husband advanced no reasons as to why the matters set out in the Notice of Appeal for the second appeal were not the subject of either the original Notice of Appeal or the Amended Notice of Appeal.
Parties are entitled to finality in litigation. It is an abuse of process to seek to re-litigate the same subject matter. To permit the filing of a further Notice of Appeal would be to sanction such abuse.
I am satisfied, consistent with the observations of the High Court in Tomlinson v Ramsay Food Processing Pty Ltd (2015) 256 CLR 507, that the bringing of this further Notice of Appeal constitutes an abuse of process and consequentially, the Application in an Appeal should be dismissed.
I will make orders accordingly.
COSTS
In circumstances where I foreshadowed to the parties that I would deal with the issue of costs, the parties made short submissions as to costs.
The wife sought an order for costs in the sum of $3,085. The husband’s counsel conceded that if he were unsuccessful a costs order was appropriate and did not dispute the reasonableness of the amount.
An application for costs is governed by the provisions of s 117 of the Family Law Act 1975 (Cth) (“the Act”), which provides a general rule that each party to the proceedings should bear their own costs.
Section 117(2) reposes in the Court a discretion to make a costs order in circumstances where the Court determines that there are circumstances that justify it making an order and, if there are such circumstances, the Court may make such order as it considers just, having regard to the matters set out in s 117(2A).
It is well-settled law that no one factor under s 117(2A) is determinative and the Court may give such weight as it considers relevant to any factor. In PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123, the Full Court observed:
41. … Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs
Dealing now with the relative subsections in s 117(2A).
I note the financial circumstances of the parties as set out in the primary judge’s determination. There is no evidence before me to suggest that those circumstances have changed.
Neither party is in receipt of legal aid.
I take into account the conduct of the husband in bringing this application. There has been a repeated failure by the husband to comply with directions and the Rules of Court. I also take into account the appropriate concession by his counsel.
I am satisfied that there are justifying circumstances and that the husband should pay the wife’s costs. I fix those costs in the sum of $3,085 and direct the husband to pay those costs within 28 days.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 14 September 2023
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