CALLAS & CALLAS AND ANOR
[2018] FamCAFC 124
•6 July 2018
FAMILY COURT OF AUSTRALIA
| CALLAS & CALLAS AND ANOR | [2018] FamCAFC 124 |
| FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT – Failure of applicant to file draft index to the appeal books within the time prescribed by r 22.13(2) of the Family Law Rules 2004 (Cth) – Explanation for delay – Conduct of the proceedings – Merits of the appeal – Application dismissed. |
| Family Law Act 1975 (Cth) s 79 Family Law Rules 2004 (Cth) rr 22.13, 22.44 |
| Gallo v Dawson (1990) 93 ALR 479 Jackamarra v Krakouer (1998) 195 CLR 516 Rand & Rand [2009] FamCAFC 88 |
| APPLICANT: | Ms Callas |
| FIRST RESPONDENT: | Mr Callas |
| SECOND RESPONDENT: | Mr Poole in his capacity as Trustee of the Bankrupt Estate of Mr Callas |
| FILE NUMBER: | SYC | 5579 | of | 2015 |
| APPEAL NUMBER: | EA | 44 | of | 2018 |
| DATE DELIVERED: | 6 July 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATES: | 29 May 2018; 14 June 2018; 5 July 2018; 6 July 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 22 February 2018 |
| LOWER COURT MNC: | [2018] FCCA 4 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE FIRST RESPONDENT: | In person |
| COUNSEL FOR THE SECOND RESPONDENT: | Ms Bailey solicitor |
| SOLICITOR FOR THE SECOND RESPONDENT: | Polczynski Robinson |
Orders
The Application in an Appeal filed on 21 May 2018, the two Applications in an Appeal filed on 12 June 2018 and the Application in an Appeal filed on 29 June 2018 are dismissed.
The applicant is to pay the costs of the second respondent as agreed or in default of agreement as assessed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Callas & Callas and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 44 of 2018
File Number: SYC 5579 of 2015
| Ms Callas |
Applicant
And
| Mr Callas |
First Respondent
And
| Mr Poole in his capacity as Trustee of the Bankrupt Estate of Mr Callas |
Second Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
By an Application in an Appeal filed on 21 May 2018, Ms Callas (“the applicant”) seeks an order reinstating her appeal against orders of Judge Altobelli made on 22 February 2018.
There are two respondents to the appeal. The first respondent is Mr Callas. In his reasons for judgment, the primary judge described the applicant and Mr Callas as marrying in June 2003 and separating in 2011. The second respondent is Mr Poole in his capacity as trustee of the bankrupt estate of Mr Callas (“the Trustee”), having been appointed in March 2014.
The events of yesterday and overnight
Before I turn to the substance of the application, it is necessary to deal with what occurred yesterday and overnight. The applicant has not appeared today.
The matter was listed before me for hearing yesterday. The applicant appeared and said that due to a panic attack she had taken Valium and was unable to continue with the application. She then left the court.
With the consent of the solicitor for the Trustee, the matter was adjourned until today to enable the applicant to recover from her panic attacks and the effects of the Valium.
At 10:54 pm last night, the applicant sent the following email to the Appeals Registrar:
Dear Justice Aldridge,
Firstly your honour , I would like to appologise for speaking to you testerday in court with my sunglasses on. I was totally unaware i had them on due to the medication I had taken.
Subsequently I was informed by Mr [Callas] that you required me to prepare a submission for court today.
Due to the effects of my condition and the medication, I immediately sought my specialist clinical phsychologist , [Mr H], who kindly saw me at very short notice and provided me with the attached medical written opinion and certificate.
Under the scrict instructions of [Mr H] , i was was directed not to undertake any such task.
My sincere regret for this situation, but this condition has been present sinc early 2014 and this court has had disclosure of my condition since April 2016, with similar cerificate to Justice Altobelli that was completely ignored.
This court has inflamed and exacerbated this medical situation by imposing upon me the burden of self representation without alternative.
The current situation cannot continue and cannot be tolerated any further.
I am seeking your honours suggestion to any method that will remedy the current situation.
Best regards
[Ms Callas]
(As per the original)
That email seeks a stay of her application. I will also take that to be an application for an adjournment. Both applications are opposed by the Trustee.
Annexed to the email was a letter from Mr H dated 5 July 2018 to the following effect:
Clinical Psychologist Report
Re: Ms [Callas]
I have seen Ms [Callas] on 5/4/16, 12/4/16, 27/4/16 and today, 5/7/18.
I understand that she has matters before the Family Court of Australia at present.
She is subject to panic attacks which render her unable to think clearly or function effectively when under stress. She meets criteria for diagnosis of panic disorder, as defined by the DSM 5. The prospect of having to appear in or testify in court generates panic anxiety in her. For these reasons, in my opinion, she is unable to represent herself in court.
I suggest that a stay be put on the current proceedings until she can be represented by a solicitor.
Yours sincerely,
[Mr H]
Clinical Psychologist
(As per the original)
Mr H, according to the letterhead, is a clinical psychologist. I note that although he apparently saw the applicant yesterday, he had not done so since 27 April 2016. He seems to have seen her now on a total of only four occasions. Mr H does not set out what facts and circumstances he took into account in coming to his opinion that the applicant suffers from panic attacks that prevent her “appear[ing] in or testify[ing] in court”. I note that the applicant was able to appear at least twice before the Court in this matter. In any event, taking that to be the position, the suggestion is that a stay be put on the current proceedings until the applicant has the benefit of a solicitor.
That accords with what the applicant says in her email, which is that the court has exacerbated her medical situation by imposing on her the burden of self-representation without an alternative.
As I shall shortly explain in the substantive reasons, one of the orders sought by the applicant is an order that this Court direct the Federal Circuit Court to make an interim property settlement to her of at least 50 per cent of the amount of the property the subject of the proceedings in that court. That application of course completely overlooks the fact that those proceedings have been entirely concluded. Such an order is not a legal possibility.
Pursuant to the orders of the primary judge, the applicant has the benefit of a property at Suburb B which she no doubt could utilise for the purpose of raising funds to instruct a solicitor or for the purpose of giving security.
In her email, the applicant states that yesterday I directed her to prepare a submission for court today. I did not. I suggested to Mr Callas that if the applicant found it too difficult to appear in person, I was prepared to receive a written submission from her.
This is an application for reinstatement of an appeal. Any stay of this application would simply mean that the application for reinstatement would not be heard until the stay was lifted. There would be no appeal on foot but the application would remain unresolved. That does not appear to be a useful exercise, given that an application for reinstatement is an interlocutory application and can be renewed at any time.
This is the fourth occasion the matter has been in the list for hearing, as the reasons I am about to give in the substantive application indicate. I consider that giving any further amount of time for preparation will not result in a situation where the applicant is in a position properly to run this application or to run an appeal.
Even accepting that the applicant suffered from a panic attack yesterday, there is no appearance by her. There is no suggestion that she is continuing to have a panic attack today. But even accepting that to be the position, the nature of the application is such that the applicant’s position is unlikely to be remedied, even taking her case at its highest. This is the fourth time the matter has been before the court on a relatively straightforward application.
Procedural fairness is a two-way street and at some stage the Trustee is entitled to have this application determined as much as the applicant is entitled to an adjournment in appropriate circumstances. I also take into account the fact that the court’s resources cannot be occupied by matters such as this at the expense of others.
Therefore, taking the email from the applicant as both an application for a stay and an application for an adjournment, I decline to grant either.
The reinstatement application
The applicant filed a Notice of Appeal on 22 March 2018. Rule 22.13(2) of the Family Law Rules 2004 (Cth) (“the Rules”) required her to lodge a draft index to the appeal books within 28 days of that filing. She did not do so and, in accordance with r 22.13(3), the appeal was deemed to be abandoned on 19 April 2018.
The proceedings before the primary judge were essentially proceedings pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) between the applicant and the Trustee. His Honour found that Mr Callas was possessed of no non-vested property so that all of his property had vested in the Trustee.
Central to the proceedings was a property at Suburb B which was owned by an incorporated entity called Incorporated Entity A. The Trustee successfully contended that this property was in fact the property of the applicant and Mr Callas and thus available for division.
In addition to a declaration giving effect to that contention, the primary judge divided the property the subject of the proceedings so that the applicant received the property at Suburb B and the Trustee received a property at Town C.
As I understood it, the application for reinstatement was not opposed by Mr Callas, but was opposed by the Trustee. I note that Mr Callas has not appeared today. It is difficult to see what his interests in the appeal might be.
The principles to be applied
Pursuant to r 22.44 of the Rules, the Court may reinstate an appeal that has been deemed to be abandoned. In considering such an application, the Court will have regard to the following statement of principle from McHugh J in Gallo v Dawson (1990) 93 ALR 479 at 480:
… The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice.
It is important to observe that the above remarks were made in the context of an application to extend time in which to file a Notice of Appeal. Nonetheless, they are relevant to this matter to this matter (Rand & Rand [2009] FamCAFC 88 at [16]).
The hearing of such an application involves the exercise of discretion so as to enable the Court to do justice between the parties. In doing so, the Court will consider the history and conduct of the proceedings, their nature, the consequences for the parties of the grant or refusal of leave and the merits of the application. The Court will only exercise its discretion in favour of the applicant if it can be satisfied that strict compliance with the Rules will work an injustice.
It is also necessary to bear in mind that where an appeal has been regularly filed, it should not be barred from proceeding, due to some procedural oversight on the part of the appellant: see Jackamarra v Krakouer (1998) 195 CLR 516. In that case at 521, Brennan CJ and McHugh J opined that the merits of the appeal were relevant to the consideration of whether the relevant breach should be excused, but the extent of the enquiry was only whether or not the appeal was so devoid of merit as to make any extension of time futile.
The explanation for delay
The applicant’s explanation for not filing a Draft Appeal Index is that she was unaware that she had to do so. Her evidence was that at the time of filing the Notice of Appeal, she “made at the time all possible enquiries dealing with the conduct and procedure to be undertaken by me”. She therefore asserts that due to an obvious oversight made on the part of the Eastern Appeals Registry she was not informed of any need to file a Draft Appeal Index.
I immediately observe that it is not the role of the staff of the Registry to give legal advice to appellants, to tell them how to conduct their appeal or to give advice as to the requirements under the Rules.
In any event, the Trustee points out that the applicant was in fact informed of the requirement to file a Draft Appeal Index. On 27 March 2018, the Registry wrote to the applicant enclosing stamped copies of the Notice of Appeal for service upon the other parties. The letter included the following:
Draft Index to the Appeal Books
As the Appellant, you are referred to Rule 22.13(2) and (3) which provide, inter alia, that an appellant must file a draft index to the appeal books within 28 days of filing the Notice of Appeal (or reasons for judgment being published) and that in the event the draft index is not filed, the appeal is deemed abandoned.
I note that a judgment has been issued in relation to the order subject of appeal. As the Appellant, you should ensure that a draft index to the appeal books is filed with the Appeals Registry, and served on all other parties to the appeal, by no later than 4.30pm on 19 April 2018. Filing of the draft index will be accepted by Email, Fax or Post.
The draft index must comply with Rules 22.19 and 22.20 of the Rules. Whilst there is no prescribed form for this document, I enclose a sample index for your assistance and a copy of the relevant Rules. Failure to file the draft index by 4.30pm on 19 April 2018 will result in the appeal being deemed abandoned pursuant to Rule 22.13(3).
(Original emphasis)
The letter attached a pro-forma draft appeal index and copies of the relevant Rules in full, including r 22.13. It is therefore difficult to accept the explanation for the failure to file the Draft Appeal Index.
However I bear in mind that the applicant is acting for herself and that the application for reinstatement was made a relatively short time after the abandonment. The consequence of not extending time would be severe upon the applicant. She would lose the benefit of an appeal as of right, where she has filed a Notice of Appeal within the requisite time.
The conduct of the proceedings
Before turning to the merits of the appeal, it is convenient to consider the conduct of this application.
The matter was listed before me on 29 May 2018. There was no appearance for the first respondent, Mr Callas. The Trustee sought an adjournment of the application so as to be able to place some evidence and written submissions before the Court. The applicant opposed the adjournment asserting loudly and offensively that the Trustee and, in particular, the Trustee’s solicitor should not be permitted to be present in Court. Indeed, the applicant declined to sit or stand at the bar table whilst it was also occupied by the Trustee’s solicitor.
The applicant made a number of very broad complaints about the Trustee, his solicitors and judges. I endeavoured to draw her attention to her application for reinstatement. She informed me that the matter involved very much more than the reinstatement. I again attempted to draw her attention to the particular application when there was yet another loud outburst and the applicant left the Court saying words to the effect that there was no point in staying.
I granted the application sought by the Trustee and stood the matter over to 14 June 2018. On that day, the appearances as were before, but on this occasion Mr Callas also appeared.
The applicant, again, took very loud exception to the presence of the Trustee’s solicitor and loudly and angrily submitted that the Trustee’s submissions and evidence had been served late and should be entirely disregarded. She would not permit others to speak. She refused to either sit down or to stop talking and ultimately was removed from the Court by the security staff.
I am not sure what the relationship is, if any, between Mr Callas and the applicant, although it could be seen that at times during the hearing he was prompting the applicant as to what to say. Although he is not seeking to pursue an appeal, I endeavoured to explain to him that in determining the application, I needed to look at the merits of the appeal but I considered there were a number of difficulties with the present Notice of Appeal. I said it would be in the interests of the applicant to reconsider her grounds of appeal and prepare a draft Amended Notice of Appeal which could be looked at when the matter was next before the Court. I also indicated that I was prepared to give an adjournment for that purpose. I did so and the matter was stood over to 5 July 2018.
That led to the applicant filing on 29 June 2018 a document headed “Application in an Appeal” which sought the following orders:
1.That the second respondents submission to this court be struck out in its entirety pending the proposed action of the appellant to be undertaken in the Federal Circuit Court.
2.That his honour make directions or orders for the appellant to have the matter of surplus funds absconded by the second respondent to be heard by the Federal Circuit Court.
3.Allow the appellant fourteen days to file and serve documents in the Federal Circuit Court.
4.A stay be granted in appeal EA44/2018 until the matter in the Federal Circuit Court is completed and funds are returned to the controlled monies account of this court.
4.That the appellant be granted access to at least 50% of these funds in order to:
(i)pay a legal practitioner to revise the current appeal
(ii)run the current appeals case
(iii)pay for filing fees, court costs and legal expenses and disbursements
(iv)any other expense of the court such as reports, subpoenas, witness conduct money and the like as required.
5.That this court compel the second respondent to return to the controlled monies account of this court the initial amount of $25,000.00 so that the appellant may use these funds to pay for legal costs in the Federal Circuit Court including but not limited to:
(i)Employ a legal practitioner to prepare required documents for the case in the Federal Circuit Court
(ii)run the Federal Circuit Court case and represent the appellant
(iii)pay for filing fees, court costs, legal expenses and disbursements
(iv)any other expense of the court such as reports, subpoenas, witness conduct money and the like as required.
6.Any other orders as the court sees fit.
(As per the original)
The difficulties with the application is obvious. This Court has no power to direct the Federal Circuit Court of Australia to act in a particular way. In any event, the proceedings in that Court have been completed and cannot be re-opened as suggested. In effect, the proposed orders allow the appeal and provide for an interim distribution of the property in dispute for the purpose of obtaining legal assistance with drafting the grounds of appeal. The illogicality is stark. The only available course is to dismiss this application.
The application does, however, demonstrate that the production of an Amended Notice of Appeal by the appellant is very unlikely.
In her affidavit in support, the applicant wrongly said that I had made a direction for the applicant to file an application in the Federal Circuit Court for the recovery of funds. I did not do so. Importantly, for present purposes, the affidavit goes on to say:
14.Once directions or an order is issued by his Honour in this court to the appellant, the relevant initiating application could be filled in the Federal Circuit Court to compel the second respondent to return the outstanding monies to a controlled monies account of this court and grant access to the appellant so that the appeal may be properly prepared and refiled by a legal practitioner.
15.I verily believe, to deny the appellant such right would would be an action of procedural unfairness and would cause the current appeal to fail and would deny the appellant natural justice.
16.As a direct result of the issues as disclosed above, the second respondents submission to this court will be rendered null and void under the proposed action that will be taken in the Federal Circuit Court by the appellant.
17.Once His Honour provides the appellant with suitable written directions / orders this matter will progress to the federal circuit court with a stay on the current proceedings EA44/2018 as part of the orders sought.
18.The Federal Circuit Court will compel the second respondent to return the outstanding surplus monies from the sale of the matrimonial home to a controlled monies account of this court.
19.This court will also be requested to provide access to the appellant, to at least 50% of these funds in order for a qualified legal practitioner to redraft and recompile the present appeal so that his honour may be presented an adequate and acceptable appeal as required by the appellate court.
20.The orders of the 14th June 2018 by His Honour are considered contradictory subject to the verbal confirmation of His Honour as stated in court on the 14th of June 2018 “this appeal, in its current form has no grounds for success as it does not refer back to matters of law”.
(As per the original)
Once again, there is a complete failure to come to grips with this application or the prosecution of the appeal.
On 5 July 2018, the applicant appeared briefly to inform me that she had suffered a panic attack, taken Valium and was in no state to pursue her application. She then left the court room. The solicitor for the Trustee did not oppose a short adjournment and I adjourned the application to today. I have already referred to the events that occurred over night.
I can therefore have no confidence whatsoever that if a reinstatement is granted, the conduct of the reinstated appeal will be any different to the conduct of this application. Despite a number of adjournments the applicant is no closer to producing an Amended Notice of Appeal or Draft Appeal Index. This application itself has now extended over four days and the documents produced for it sap any confidence in the applicant’s ability to deal with her appeal. In saying this I am fully aware that the applicant is acting for herself however the leniency that can be extended to a litigant in person can only extend so far.
I doubt that the appeal will ever properly be prepared for hearing and that the respondents, in particular the Trustee, will be put nonetheless to a great deal of expense and difficulty in attempting to deal with it.
The time of the Court would also be unduly occupied to the expense of other litigants. An application for reinstatement is a relatively simple application managed reasonably well by most litigants in person. This is the fourth time this application is before the Court and there is no indication of a willingness or ability to comply with the court directions. This speaks against granting the reinstatement.
The merits of the appeal
I turn now to the Notice of Appeal noting that I have not been provided with any proposed Amended Notice of Appeal, despite the applicant having more than ample time to prepare it, and an appropriate indication to her at an earlier time of the difficulties with the present one.
The Notice of Appeal contain 235 so-called grounds. Those grounds are in support of 41 separate orders sought in the event that the appeal is successful. None of those orders is to the effect that the appeal should be allowed or the orders of Judge Altobelli set aside. The orders sought refer to orders made by other judges or orders made by Judge Altobelli on dates other than 22 February 2018. Orders 7 to 18 seek orders that the Trustee and his associated company “be held jointly and severally liable, solely and personally responsible and criminally and financially responsible” for conduct specified in each of those orders. None of the 41 proposed orders could be made, even if the appeal was successful.
Order 37 seeks an order that the primary judge “be dismissed from these proceedings”. The grounds in support of that order state:
199.I have no faith in Judge Henderson to be fair and impartial.
200.I have no faith in Judge Altobelli to be fair and impartial. There have been many transgresions that cannot be forgiven and are currently in a complaint to Chief Justice Pascoe.
(As per the original)
Even if, taking the proposed orders and grounds together, it could be seen that this is a complaint that the primary judge ought to have disqualified himself, it is impossible to identify the reason or reasons why it is said that the primary judge was unfair and impartial. Therefore the merits of this complaint, to the extent that it is a proper ground of appeal, cannot be assessed.
The grounds are arranged under headings referring to each of the orders sought. As the orders cannot be made, there is an immediate difficulty with the Notice of Appeal because they only refer to those orders. The grounds themselves are a litany of complaints against the courts and against the Trustee. None, perhaps not surprisingly as they are directed towards the orders sought, seeks to identify an error made by the primary judge in his reasons for judgment.
Two things flow from this. First, my concerns as to the future likely conduct of the appeal are confirmed. Secondly, I am quite unable to make any assessment of the merits of the proposed appeal other than to say on the material presently available, there are no valid grounds of appeal and the appeal, as framed, is entirely futile.
Conclusion
Taking into account the conduct of these proceedings, the likelihood that the appeal will never be properly prosecuted, the fact that, as presently drafted, the appeal is entirely without merit and that the effect of any order dismissing the application is that the applicant will lose the benefit of her appeal, I am satisfied that the applicant has not demonstrated that it would be in the interests of justice for the appeal to be reinstated.
The application seeking reinstatement of the appeal will be dismissed.
In addition to the other application in an appeal to which I have already referred the applicant filed two other Applications in an Appeal. The apparent purpose was to rely on the attached affidavits. I have had regard to that material but the applications will be dismissed.
Costs
The application for reinstatement has been wholly unsuccessful. There is no reason not to make a costs order.
The applicant is to pay the costs of the second respondent as agreed or in default of agreement as assessed.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 6 July 2018.
Legal associate:
Date: 6 July 2018
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