Burns and Smith and Anor
[2010] FamCAFC 137
•6 July 2010
FAMILY COURT OF AUSTRALIA
| BURNS & SMITH AND ANOR | [2010] FamCAFC 137 |
| FAMILY LAW - APPEAL – APPLICATIONS IN AN APPEAL – application seeking the reinstatement of an appeal deemed abandoned and for the wife to be provided with audio transcripts – application seeking various injunctions – where there was no appearance by the applicant – where the Court is satisfied the applicant was aware of the listing and was on notice that the applications may be dismissed if she failed to attend – where there have been proceedings between the parties in the Family Court since 2003 – where it is not clear whether the applicant has been discharged from bankruptcy – where there was no explanation provided for the applicant’s absence – where it would be inappropriate to adjourn the proceedings – applications dismissed. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Burns |
| 1st RESPONDENT: | Mr Smith |
| 2nd RESPONDENT: | Ms O (a solicitor) |
| FILE NUMBER: | DGF | 284 | of | 2003 |
| APPEAL NUMBER: | SA | 28 | of | 2010 |
(Ex SA 38 of 2005)
| DATE DELIVERED: | 6 July 2010 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 6 July 2010 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 October 2004 |
| LOWER COURT MNC: | [2004] FamCA 1020 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | No appearance |
| COUNSEL FOR THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE 1ST RESPONDENT: | O Solicitors |
| COUNSEL FOR THE 2ND RESPONDENT: | No appearance |
| SOLICITOR FOR THE 2ND RESPONDENT: | O Solicitors |
Orders
That the Application in an Appeal filed on 30 April 2010 and the Application in an Appeal filed on 25 June 2010 be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Burns & Smith & Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 28 of 2010 (Ex SA 38 of 2005)
File Number: DGF 284 of 2003
| Ms Burns |
Applicant
And
| Mr Smith |
1st Respondent
| Ms O (a solicitor) |
2nd Respondent
EX TEMPORE REASONS
In this matter, there was no appearance by the applicant, Ms Burns. There is also no appearance by the respondent, or indeed the respondents named in the application. I understand, though, that that was expected, in the sense that the Appeals Registrar had received advice in the lead-up to the hearing today that the respondents would not be attending.
There are two applications before me today. The initial application is an Application in an Appeal filed on 30 April 2010 by Ms Burns. In that application, Ms Burns sought orders firstly that she “be granted leave to file a Notice of Appeal to reinstate an appeal against the orders of the Honourable Deputy Chief Justice Faulks, made on 29 October 2004”. Secondly, Ms Burns sought an order, and I quote:
That appropriate arrangements be made for the Wife to receive delivery of the audio transcripts to assist the wife’s hearing impairment.
That application was supported by an affidavit filed on 30 April 2010.
The second application that is before me today is an application filed by Ms Burns on 25 June 2010. In that application, she sought an order, as she describes it:
… for Injunctions against [Mr Smith], and named third parties [Mr M], [K] Lawyers, [Mr P], [E] Real Estate, and [Ms O], to restrain all those parties and or their agents from making any application against the re-instated Trustee/Officer [Ms Burns] or her four children; [Burns] Trusts and Their Legal Entities; who have a legal interest over-all-the land situated at [property F].
There was a supporting affidavit filed in relation to that application on 25 June 2010 as well.
Now, the first application was listed for hearing today, and I note that as recently as 17 June 2010, the Regional Appeals Registrar forwarded a letter to Ms Burns at her address – or the address that she uses of property F. In that letter, Ms Marrone confirmed that the application filed on 30 April was listed for hearing before me in Melbourne at 10:00am on Tuesday 6 July 2010. Importantly, in the second paragraph, Ms Marrone wrote this:
If you do not attend the hearing, the Court may dismiss the application without further notice to you.
There is reference in that letter as well to a letter dated 16 June 2010 from Ms Burns to the Regional Appeals Registrar, which letter importantly identifies the address to be used for correspondence for Ms Burns as property F. I also observe that in the file there is a facsimile dated 18 June 2010 received from Ms Burns on 20 June 2010, and in that facsimile, Ms Burns, again consistent with previous correspondence and the like, has identified her address as property F. I do not need to detail the contents of the letter of 16 June, it is not relevant for current purposes. It refers, though, to the collection of documents and materials which, in the final analysis, were forwarded to Ms Burns by the Regional Appeals Registrar under cover of that letter of 17 June 2010.
In any event, the point of me reciting that is that I am satisfied that Ms Burns is aware of the hearing today, yet she has not attended. The Regional Appeals Registrar has just checked her voicemail to see if there is any message from Ms Burns, and she also checked her emails to see if there is any email from Ms Burns, and I am informed that there is no message and no email received from Ms Burns to explain her absence today.
In relation to the other application that is before me, which was filed on 25 June, that was returned – or service copies were returned – to Ms Burns by the Regional Appeals Registrar at the address of property F. And I should I add, I suppose, just for the record, that that is also the address that is described in the application as Ms Burns’ contact address. Indeed, just looking at the application of 30 April 2010, it is likewise the contact address / address for service in that application, and thus there can be no mistake about that. In any event, with the more recent application and the supporting affidavit, service copies were returned to Ms Burns, with advice that they would be heard at the same time as the application of 30 April. Thus, equally, I am satisfied that Ms Burns is aware that that application was listed for hearing before me today.
Now, the choices I have with this matter are to adjourn and seek some explanation from Ms Burns as to her absence, or to dismiss the applications today.
I propose to do the latter. Ms Burns was clearly on notice that if she failed to attend, that her applications may be dismissed. Significantly, this is a matter which has been before the Family Court since 2003. There have been many applications filed by Ms Burns, and I note that a number of those applications have recently been finalised by being dismissed by O’Ryan J on 2 July 2010. The importance of that is that those applications included applications for leave to appeal against orders made in these proceedings, stretching back as far as 2003 and that gives some indication of the lengthy history of these proceedings. And, significantly, I observe that in relation to the first application before me today, as I recited, that seeks leave to, in effect reinstate an appeal against orders made in 2004.
That appeal was deemed abandoned on 14 October 2005 because of the failure of the wife to comply with orders at that time for the filing of appeal books. And, indeed, I note that she had even been granted an extension of time to file those appeal books, but she still failed to comply. I observe, also, that the wife subsequently filed an application on 17 November 2005 to reinstate that abandoned appeal. That was heard by Kay J on 22 December 2005, when his Honour dismissed the application. His Honour found that the wife had no locus standi to make the application, because she was an undischarged bankrupt at the time.
The wife was made bankrupt on 28 October 2005. Importantly, Kay J, though, in his reasons for judgment, quite properly indicated that the dismissal of the application at that time was not intended to prejudice any further application that the wife might bring once she regained sufficient status to make such an application. Of course, it is obvious from the timing that I have just referred to that it is only now, in excess of four years later, that the wife has made that application for reinstatement. It would be the case, though, that for some of that period at least, and indeed maybe all of the period, she has remained an undischarged bankrupt. And that was an issue that I intended to raise with Ms Burns, because as I understand it, the initial period of bankruptcy, which was three years and which commenced on 28 October 2005, was extended for a further period of three years. And if that is correct, then that period would not expire until October 2011. On the other hand – and it is helpful to have the reasons for judgment delivered by O’Ryan J on 2 July because, in those reasons, his Honour indicates that Ms Burns informed him that her bankruptcy was discharged on 15 November 2009. It was not apparent from the reasons for judgment, though, whether Ms Burns had presented some documentation about that, or whether it was just something she said from the bar table. It seems to be the latter, and, significantly, there is no indication in the affidavit in support of the application of 30 April that her bankruptcy has been discharged.
As I say, that was a matter that I was intending to raise with Ms Burns because, of course, if she is still an undischarged bankrupt, then she still would not be able to proceed with her application. On the other hand, if the bankruptcy has been discharged, then it would be a matter of addressing, for example, the reasons for the delay in bringing the application, and other matters that are relevant to the exercise of discretion, in determining whether to reinstate the abandoned appeal.
In the circumstances, and with that history, it would be inappropriate, in my view, to further delay this matter by adjourning the proceedings. It is not as though Ms Burns does not know how this Court operates. She has been before it over many years and, as I say, there is no explanation for her absence today, and in those circumstances, I propose to dismiss both applications.
Perhaps before I do that, I should say something further about the other application that is before me. That is an application which is unintelligible. The affidavit in support does not help, and I have extreme difficulty in understanding what the issues are, and what relevance it has to the appeal.
And again, obviously, I had planned to seek clarification from Ms Burns as to that when she appeared, but she has not, and thus I do not propose to allow that matter to proceed any further in her absence and in the absence of any explanation as to why she is not here today.
I certify that the preceding 15 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 6 July 2010.
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