CORNALL & CORNALL - [2015] FamCAFC 194

FAMILY COURT OF AUSTRALIA

CORNALL & CORNALL

[2015] FamCAFC 194

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – DISMISSAL – Where the respondent’s solicitor seeks that the Amended Notice of Appeal be dismissed – Where the appellant has not appeared to prosecute his appeal nor has he sought an adjournment of the hearing – Where there are no discernible grounds of appeal contained in the Amended Notice of Appeal such as would warrant appellate interference – Appeal dismissed.

FAMILY LAW – APPEAL – COSTS – Where the respondent seeks costs – Where there are circumstances which justify an order for costs being made – Where the appearances for which the respondent seeks costs have both been fruitless – Costs ordered in favour of the respondent as sought.

Family Law Act 1975 (Cth) – ss 94AAA(3) and s 117

Family Law Rules 2004 (Cth) – r 22.45

APPELLANT:

Mr Cornall

RESPONDENT:

Ms Cornall

FILE NUMBER:

MLC

1756

2015

APPEAL NUMBER:

SOA

2015

DATE DELIVERED:

25 September 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

EX TEMPORE JUDGMENT OF:

Strickland J

HEARING DATE:

25 September 2015

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

17 July 2015

LOWER COURT MNC:

[2015] FCCA 1904

REPRESENTATION

THE APPELLANT:

Self-represented – No appearance

SOLICITORS FOR THE RESPONDENT:

Ebejer & Associates
Ms Ebejer appearing

Orders

The Amended Notice of Appeal filed on 1 September 2015 be dismissed.
The appellant pay the costs of the respondent fixed in the sum of ONE THOUSAND ONE HUNDRED DOLLARS [$1,100] such costs to be paid within 28 days of the date hereof.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cornall & Cornall has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 46 of 2015
File Number: MLC 1756 of 2015

Mr Cornall

Appellant

And

Ms Cornall

Respondent

REASONS FOR JUDGMENT

Introduction

Before me today is an Amended Notice of Appeal filed by Mr Cornall (“the appellant”) on 1 September 2015. This was intended to be a further directions hearing in relation to this matter, and as advised to the parties, including the appellant, also for consideration of dismissal of the appeal.
The appellant has failed to attend court today, and I note that the matter has been called by my court officer without any response by or on behalf of the appellant. In those circumstances, and given the content of the Amended Notice of Appeal, which I will come to in a moment, counsel for Ms Cornall (“the respondent”) seeks an order that the appeal be dismissed with costs.

Background

The appellant filed a Notice of Appeal on 8 July 2015 against interim orders made by Judge Curtain on 1 July 2015. There were a number of orders made by his Honour on that day, and all of those orders were the subject of the Notice of Appeal. However, the primary orders about which the appellant complained were interim orders that a property at D be placed forthwith on the market for sale by private treaty, and consequential orders including the nomination of real estate agents by the appellant, the choosing of one of those agents by the respondent, and in default of nomination of any real estate agents, providing for the respondent to nominate the agent.
There were further orders providing for the parties to sign all necessary documents and do all things necessary to appoint the real estate agent, and pending the sale of the D property, there were orders that the respondent have the right to sole possession and occupation of the property, and that neither party encumber or further extend any secured loans over the property without the consent in writing of the other party. Consequential orders were made providing for the parties being unable to agree on the reserve price, providing for the disbursement of the proceeds of sale, and an order that the respondent permit an agent of the appellant to collect a motor vehicle from the property, and for the respondent to allow the agents of the appellant to collect items specified in an affidavit of the appellant filed on 4 June 2015. His Honour made other orders setting the matter down for final hearing and providing for the preparation of that hearing. It is unclear on what basis the appellant appeals against those procedural orders but that is the effect of his initial Notice of Appeal filed on 8 July 2015.
As is required under the Family Law Rules 2004 (Cth) (“the Rules”), a draft appeal index was filed on 16 July 2015, and the matter was then listed for hearing before me as a single judge of the Appeal Division on 24 July 2015.
At the directions hearing on 24 July 2015 the appellant appeared without legal representation, and the respondent was represented by counsel. I indicated to the appellant that having read the reasons for judgment and the orders made by the trial judge, together with the Notice of Appeal filed by him, that the Notice of Appeal could not go forward in that there was no proper ground of appeal raised therein.
In those circumstances I indicated to the appellant that as his appeal stood it necessarily had to be dismissed, but if he wanted the opportunity to seek legal advice and file an Amended Notice of Appeal, I would consider that. In the end result that is what the appellant sought, namely an adjournment to enable him to seek legal advice and file an Amended Notice of Appeal. I further indicated to the appellant that if he did not file an Amended Notice of Appeal I would put in place a self-executing order, but if he did file an Amended Notice of Appeal, then there would be a further directions hearing to consider that document, and particularly as to whether it raised proper grounds of appeal.
Although the adjournment was not by consent there was no opposition to the appellant being given an opportunity to file an Amended Notice of Appeal. Counsel for the respondent though, understandably, made an application for costs. It was agreed after discussion that the question of costs would be reserved because there were obviously further issues which might arise in that regard in the future, depending upon what the appellant did in relation to the filing of an Amended Notice of Appeal.
Given that in my view there were no proper grounds of appeal contained in the Notice of Appeal, I invited the appellant to address me in terms of the complaints that he had about the trial judge’s decision, to perhaps better understand what the issues were. Unfortunately, as a result of that exercise, it readily became apparent to me that none of the complaints that the appellant expressed, had any validity in terms of requiring appellate interference, and that none of the complaints, if incorporated in an Amended Notice of Appeal, would have any chance of success.
In any event, given that the appellant was intending to seek legal advice about the appeal, I took that matter no further, and made the orders that I proposed, namely providing for the appellant to file and serve an Amended Notice of Appeal, providing a self-executing order in the event that he failed to do so, and providing that in the event that he did file an Amended Notice of Appeal, that a further directions hearing would be fixed at a time to be advised. I also reserved the question of the costs of that day.
The appellant did, in fact, file an Amended Notice of Appeal on 1 September 2015, and it was filed within the time allowed. There was an issue in terms of how that Amended Notice of Appeal had been laid out and prepared, but I need not dwell on that matter. I will come back to that Amended Notice of Appeal later in these reasons.
Given that circumstance, the Appeal Registrar on 7 September 2015, forwarded a letter by way of email to the appellant and to the solicitors for the respondent. That letter read as follows:
In anticipation of the Chief Justice of the Family Court determining that the appeal is to be heard by a single judge, the amended notice of appeal filed 1 September 2015 is listed before the Honourable Justice Strickland in Melbourne on Friday, 25 September 2015 at 10.30 am. It is his Honour’s intention to consider dismissal of the appeal on 25 September 2015.
(Emphasis in original)
Pausing there, I am unsure why the Appeal Registrar would refer to anything that the Chief Justice of the Family Court might need to do in relation to the appeal, but be that as it may, the Chief Justice made a direction on 7 September 2015 pursuant to the provisions of subsection 94AAA(3) of the Family Law Act 1975 (Cth) (the Act”), that it was appropriate for the jurisdiction of the Family Court in relation to this appeal to be exercised by a single judge.
According to the Appeal Registrar’s file, there was an email response by the appellant to the letter of 7 September 2015, which was sent to or received by the Appeal Registrar at 3.58 pm on that same date, and it read:
Sorry I am not contactable via email at the moment.
Please contact me by Phone on …. … … or by writing to the below address:
…
I note that the address provided by the appellant to the Appeal Registrar was in fact his address for service.
There was then a second email response by the appellant, either sent to or received by the Appeal Registrar at 4.01 pm which simply read, “[h]ow convenient”. Then a third email sent by the respondent to or received by the Appeal Registrar at 4.03 pm on that same day, which read, “[h]i, I am not available for hearing prior to the 25^th October 2015. Thank you.”
On 8 September 2015, the Appeal Registrar sent a letter to the appellant at the address provided by him, and which was his address for service, and that letter read as follows:
I refer to your 3 e-mails of 7 September 2015. As requested and until such time as you inform the appeal registry that you are contactable by email, communications relating to this appeal will be forwarded to you by mail to the above address.
I confirm that this appeal remains listed before the Honourable Justice Strickland on Friday, 25 September 2015 at 10.30am. The date and time will not be administratively adjourned on the request of one party alone. In the event that the respondent provides written consent, the listing may be adjourned. If the respondent does not consent, you should make formal application for an adjournment by completing an application in an appeal, supported by affidavit. The documents should be filed in the Southern Appeal Registry.
If the hearing is not adjourned and you do not attend the hearing on 25 September 2015, either in person or by legal representative, the appeal may be dismissed without further notice to you.
(Emphasis in original)
There has been no letter or email responding to that letter of the Appeal Registrar and there has been no application filed seeking an adjournment of today’s hearing. It has also been confirmed by the solicitor for the respondent that they have not received any request from the appellant as to whether they would consent to an adjournment of the hearing today. There is however a note on the Appeal Registrar’s file dated 10 September 2015 which appears to relate to an attendance that the appellant made upon the Appeal Registrar’s assistant, and the note reads:
A/I Mr [Cornall] –
Re letter of 8 September, demanded to know what is legislation which requires him to file an [application] to have matter adjourned. Tried to tell him that there was no legislation as such - but Court procedure and practice dictate certain rules for adjournments. …

The application for dismissal of the appeal

The application that the appeal be dismissed is put on two bases. First, that in the Amended Notice of Appeal there are still no proper grounds of appeal to enable the appeal to go forward, and secondly, the failure of the appellant to appear today to prosecute his appeal.
I note that r 22.45 of the Rules provides for the dismissal of an appeal, and it applies if a party has not met a requirement under the Rules or the regulations, or has not complied with an order in relation to the appeal, or has not shown reasonable diligence in proceeding with an appeal. Sub-rule (2) of r 22.45 provides that a court having jurisdiction in the appeal may, if the defaulting party is the appellant, dismiss the appeal.
I also note that pursuant to sub-rule (3) of r 22.45 the court may make an order under sub-rule (2) on its own initiative, if, at least 14 days before making the order, written notice has been given to the parties about the date and time when the court will consider whether to make the order. I do not need to rely on that sub-rule because, of course, I have an oral application before me on behalf of the respondent. However, if I need to, I note that that provision has been complied with, in that the advice to the appellant that his appeal would be considered today for dismissal was given to him by letter of 7 September 2015.
In terms of the Amended Notice of Appeal, it is not apparent upon a reading of that document that the appellant did what he said he was going to do, namely seek legal assistance, but of course, that was a matter for him. Certainly, there has been some amendment of the grounds of appeal. Before addressing those grounds of appeal though, I note that leave to appeal is still not sought in the Amended Notice of Appeal. By that I mean, it was not sought in the original Notice of Appeal either, and leave to appeal is required because the orders the subject of the appeal are either procedural, or interim orders. Thus, that of itself is a failing in terms of whether this Amended Notice of Appeal is sufficient and should be dismissed.
In terms of the grounds of appeal, to repeat, there has been some amendment by the appellant, but unfortunately not such as any of the grounds of appeal can still be considered proper grounds of appeal which allege an error of fact or law by the trial judge, consequent upon which appellate interference would be required. In general terms, they are mere assertions without any specificity. However, I do not propose to go through each individual ground of appeal, because that comment applies across the board to all of the supposed grounds of appeal.
Having again read his Honour’s reasons for judgment and the orders that his Honour made, the Amended Notice of Appeal, and recalling the complaints that the appellant raised with this court at the previous directions hearing, in my view, there is no ground of appeal here which, even if considered a proper ground, has any chance of success.
Given that, and given the failure of the appellant to appear today to prosecute the appeal, I propose to dismiss it.

Costs

I now turn to the question of costs.
The solicitor for the respondent has provided me with an electronic version of a letter sent to the appellant on 25 September 2015, referring to today’s hearing, and putting him on notice that if he proceeded with his appeal, costs would be sought in the sum of $990 in relation to the appearance at the hearing on 24 July 2015, together with the sum of $2,160 in relation to the appearance at the hearing on 25 September 2015. It was further indicated that if the appellant was to proceed with his appeal, then this correspondence would be produced on the issue of costs.
I take that letter into account as being notice to the appellant that if he proceeded with his appeal, then costs would be sought, but of course, that is not what is happening. The appellant is not here to proceed with his appeal, so I do not take that into account in making any order for costs, and indeed, I note that on the last occasion, as the solicitor for the respondent has indicated, the amount of $550 was sought for costs on that occasion, and as I am told today, the amount of $550 is also sought for the appearance today.
In any event to resume consideration of the question of costs.
I have an application for costs before me both in relation to the hearing on 27 July 2015, and the hearing today. As I have just indicated, at the hearing on 27 July 2015 counsel indicated that she was seeking the sum of $550 for the appearance that day, and the respondent’s solicitor has indicated that that amount is also sought for the appearance today.
Thus, the costs sought are a total of $1,100.
Section 117 of the Act governs any application for costs, and the primary position under that section is that each party is to bear their own costs. However, if there are circumstances that justify an order for costs being made, then that can happen, and pursuant to s 117(2A), there are a number of matters which are to be taken into account in determining whether an order for costs should be made, and what that order should be.
In my view, there are circumstances here that justify an order for costs, both in relation to the hearing that took place on 27 July 2015 and the hearing today.
The hearing on 27 July 2015 was necessary because of the failure by the appellant to provide proper grounds of appeal in his Notice of Appeal, and the hearing today was intended to be a consideration, from that point of view, of the appellant’s Amended Notice of Appeal. In addition, the appellant has failed to appear today, and it has been necessary for the respondent’s solicitor to appear. The appearances both on 27 July 2015 and today have ultimately been fruitless, given that on 27 July 2015 the Notice of Appeal before the court was inadequate, and having been given an opportunity to file an Amended Notice of Appeal, that Amended Notice of the Appeal also being inadequate. As a result the respondent has unnecessarily incurred legal costs, and that also clearly justifies an order for costs being made.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 25 September 2015.

Associate:

Date: 7 October 2015