Bukari & Bukari (No 7)

Case [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 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

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…

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Details
AGLC
Bukari & Bukari (No 7) [2023] FedCFamC1A 155
Case
[2023] FedCFamC1A 155
Decision Date

CaseChat Overview and Summary

In Bukari & Bukari (No 7), the husband filed a series of appeals against property orders made by a judge of Division 2 of the Court, culminating in a Notice of Appeal and an Amended Notice of Appeal against the initial property orders, followed by an application for a stay of those orders. The wife successfully sought costs against the husband for abandoning the stay appeal, leading to a subsequent application in an appeal seeking to review the dismissal of the stay appeal. The court was required to determine whether the husband’s second appeal was permissible and whether the stay appeal could be reconsidered. The central legal issue was whether the husband’s conduct in filing multiple appeals constituted an abuse of process, and if so, whether the second appeal should be dismissed.

The court examined the principles of abuse of process, referencing the High Court’s observations in Tomlinson v Ramsay Food Processing Pty Ltd, which emphasized the importance of finality in litigation and the prevention of re-litigation of the same subject matter. The court found that the husband had not provided any justification for filing a second appeal after the stay appeal was dismissed. It concluded that permitting a second appeal would sanction the abuse of process, leading to an inefficient and unjust outcome. The court further noted that consolidating the primary appeal and the stay appeal would align with the overarching purpose of family law practice and procedure, which is to resolve disputes quickly, inexpensively, and efficiently.

Consequently, the court dismissed the application in an appeal and directed the husband to file an amended notice of appeal within 14 days. It consolidated the hearing of the stay appeal with the primary appeal, scheduling both for 25 July 2023. The court also requested the appeal judicial registrar to provide procedural directions necessary to implement these orders. The final orders ensured that the appeals would be heard together, thereby preventing further delays and promoting the efficient resolution of the dispute.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.