Daily & Daily (No 3)

[2024] FedCFamC1A 77

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Daily & Daily (No 3) [2024] FedCFamC1A 77

Appeal from:	Daily & Daily (No 3) [2024] FedCFamC1F 47
Appeal number:	NAA 30 of 2024
File number:	ADC 4606 of 2018
Judgment of:	AUSTIN J
Date of judgment:	8 May 2024
Catchwords:	FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the appellant seeks an adjournment of the appeal hearing listed before the Full Court – Where the appellant seeks an extension of time for the parties to file Summaries of Argument – Where the appellant has been unable to secure alternate legal representation since his former solicitor retired – Where the appellant says he feels stressed about preparing for the appeal and provided a letter from his psychiatrist stating he suffers from an ongoing Generalised Anxiety Disorder – Where the first respondent could not articulate any tangible prejudice she would suffer by the adjournment – Where the second respondent neither consented nor objected to the relief sought – Where the appeal hearing is vacated and listed on a later date – Where the parties time for compliance with procedural orders is also extended – Applications otherwise dismissed – Where the first respondent’s application for party/party costs against the appellant of and incidental to the Applications is dismissed.
Legislation:	Family Law Act 1975 (Cth) Pt VIII
Number of paragraphs:	17
Date of hearing:	8 May 2024
Place:	Newcastle (via Microsoft Teams)
The Appellant:	Litigant in person
Counsel for the First Respondent:	Ms Pyke KC
Solicitor for the First Respondent:	Norman Waterhouse Lawyers
Counsel for the Second Respondent:	Ms Barnett
Solicitor for the Second Respondent:	Barry Nilsson Lawyers

ORDERS

NAA 30 of 2024
ADC 4606 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR DAILY

Appellant

AND:

MS DAILY

First Respondent

R LAWYERS

Second Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	8 MAY 2024

THE COURT ORDERS THAT:

1.The hearing of the appeal and the cross-appeal, presently fixed for 31 May 2024, is vacated.

2.The appeal and the cross-appeal are re-listed for hearing on 11 July 2024.

3.The time for compliance with Orders 3 and 4 made on 8 April 2024 is extended until 7 June 2024.

4.The time for compliance with Orders 5 and 6 made on 8 April 2024 is extended until 28 June 2024.

5.The time for compliance with Orders 8 and 9 made on 8 April 2024 is extended until 28 June 2024.

6.Otherwise:

(a)the Application in an Appeal filed on 26 April 2024 is dismissed; and

(b)the Application in an Appeal filed on 30 April 2024 is dismissed.

7.The first respondent’s application against the appellant for party/party costs of and incidental to the Applications in an Appeal is dismissed.

NOTATION:

A.The first respondent does not require the publication of reasons for Order 7 hereof.

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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Daily & Daily has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. On 9 February 2024, a judge of the Federal Circuit and Family Court of Australia (Division 1) pronounced judgment to determine a financial cause between the appellant husband (“the husband”) and the first respondent wife (“the wife”) under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) and a common law cause between the husband and the second respondent, his former solicitors (“the solicitors”).

2. On 13 February 2024, the husband appealed from both the property settlement orders and the common law judgment. The solicitors then cross-appealed from the common law judgment.

3. In early April 2024, the appeal registrar fixed the appeal and the cross-appeal for hearing on 31 May 2024 and made procedural directions to ensure the parties’ readiness for the hearing.

4. The husband then filed Applications in an Appeal on 26 and 30 April 2024, each supported by an affidavit, together with a third affidavit filed on 7 May 2024, seeking an adjournment of the hearing and extra time within which the parties could file and serve their Summaries of Argument and Lists of Authorities.

5. The wife opposed the interlocutory relief sought by the husband, though the solicitors neither consented nor objected.

6. The hearing is vacated and is re-listed before the Full Court on a later date, but the adjournment is not for as long as the husband wanted. He sought an adjournment of 12 weeks, but instead is given a reprieve of six weeks. The wife did not articulate any tangible prejudice she would suffer by the adjournment of the hearing for that relatively modest period of time.

7. The husband essentially gave two reasons for the adjournment: first, his former solicitor retired in November 2023 and he has been unable to secure alternate legal representation; and secondly, he feels stressed about preparation for and the outcome of the appeal.

8. Relevantly, he deposed in his first affidavit:

   4.My solicitor told me in November 2023 that he was retiring and not doing any further work for me;

   5.        I have not had any legal advice since November 2023.

   6.        The judgement was delivered on 9/2/2024.

   7.I have been unable to engage another solicitor on short notice and without funding;

   …

   10.I have been told by prospective solicitors that due to the length and complexity of my case, if they had capacity (they didn’t) they would need two weeks just to read the files before being able to provide advice on proceeding with the appeal.

   …

   23.I have been unsuccessful in my attempts to engage lawyers since the final hearing on 27 November 2023. Before the final hearing I arranged a meeting with my preferred solicitor but after the final hearig he confirmed that he was conflicted. After the final hearing I did not know when the judgement would be delivered (the previous one took 9 months), whether the judgement would need to be appealed, and/or did not have access to funds to engage lawyers.

   …

   25.Since receiving notice that judgement was to be delivered on 9 February 2024 I have been actively trying to engage lawyers (past and prospective) to appear for me in court to receive the judgement and/or subsequently to appeal it.

   …

   27.I have been consistently told by prospective solicitors that they don’t have capacity to assist me due to the length and complexity of the proceedings, the short time before the summary of argument is due and the Full Court hearing date, and/or the availability of counsel.

   …

   30.Between 25-26 April 2024 I have been in further contact with seven prospective solicitors in relation to how much time they would need the procedural orders / dates adjourned to have capacity to assist me with the appeal. Based on initial responses 12 weeks would be required.

   …

   36.Further, or in the alternative, I have a diagnosed Generalised Anxiety Disorder. …

   37.I continue to see [doctor] monthly. My stress and anxiety gets exacerbated by the proceedings, particularly with deadlines for filing and appearing in Court. My stress and anxiety levels peaked in November 2023 due to final submissions in the proceedings and associated complications, particularly the threat of not having legal representation at that time.

   …

   42.On 26 April 2024 I had a telehealth appointment with my GP [name]. [The doctor’s] letter to the Court included as Appendix “C” noting the exacerbation on my mental health respectfully recommends the that the summary of arguments and the Full Court hearing be deferred to a later date.

   43.I am not a lawyer and have never wanted to represent myself in the proceedings and/or this appeal. Due to my diagnosed psychiatric condition my mental health is deteriorating due to the pressure, stress and anxiety associated with the appeal. …

   (As per the original)

9. Appended to the affidavit was a letter written by the husband’s medical practitioner on 26 April 2024, saying in part:

   I write this letter to the Court, in my position as [the husband’s] General Practitioner. …In my opinion, if these proceedings are undertaken without [the husband] having legal representation, there is a high risk of further significant deterioration in his mental health. Therefore, I respectfully recommend to the Court that the Summary of Argument proceeding and Full Court Hearing be deferred to a later date.

10. Appended to the husband’s third affidavit was a letter written on 7 May 2024 by his treating psychiatrist, who said:

    [The husband] suffers from an ongoing Generalised Anxiety Disorder…I can confirm that [the husband’s] mental state is such that an attempt to represent himself in court would result in an escalation in his psychiatric disorder…

11. In his second affidavit, the husband deposed:

    11.On 30 April 2024 my former solicitor provided me a letter included as appendix “A”. [The solicitor] knows my matter well and thinks it would be near impossible for any self-represented litigant to deal with the remaining issues. [The solicitor] is aware of my mental health issues and from his own observations confirm his view that I must have proper representation.

12. The husband’s former solicitor expressed an opinion that a “busy and experienced family lawyer” might need “six weeks to get on top of the matter”. The father’s current psychiatrist said the husband has now found another solicitor who needs “12 weeks to review the extensive paperwork”. When asked, the husband admitted he has now successfully engaged a new lawyer, subject to being granted more time within which to prepare for the appeal. Nonetheless, the opinions expressed by the former solicitor and the psychiatrist about the preparation time needed are rejected. Far less time should be required by a competent lawyer to prepare for the appeal and cross-appeal.

13. The husband expressly eschewed the proposition that any lack of funds has hampered his retainer of a new solicitor. When the primary judge partially stayed the appealed orders on 13 March 2024, his Honour made an order which had the effect of enabling the husband’s receipt of over $142,000 from a bank account. His Honour said in the reasons for judgment in respect of the stay order:

    21.The consequence of the [wife’s] concession is that there is no impediment to the [husband] being able to draw down approximately $142,933.82 either from the joint Westpac Account or if transferred, from the [husband’s] personal account.

    …

    54.Whilst not readily accepted by the [husband], the concession made by the [wife] that of the money remaining in either the Westpac Account or the [husband’s] account of $292,933.82, she seeks an order that quarantines the sum of $150,000 in anticipation of the Court determining her application for costs favourably.  The consequence is that the [husband] will have immediately available to him the sum of $142,933.82.  That should be sufficient to pay outstanding costs to his solicitors and preserve an amount in anticipation of the appeal with the balance of approximately $50,000 for other expenditure.

14. The husband conceded in his submissions he has other financial resources besides those funds to cover the legal fees he expects to incur in the appeal.

15. An adjournment of the hearing for six weeks until mid-July 2024, on a date which is mutually suitable to the parties, will see the appeal and cross-appeal heard about five months after the appellate proceeding was commenced. By then the husband will have had sufficient time to be ready. If he is unable to overcome his challenges to be ready by then, it may be legitimately wondered whether he ever could be ready. The hearing of the appeal cannot be deferred indefinitely just because the husband has experienced difficulty in retaining new solicitors, which he has been attempting to do since November 2023, and he has pervasive anxiety about the appeal.

16. It is unfortunate the husband is stressed by the appeal proceedings, but he chose to commence the appeal without legal representation and he must be prepared to prosecute it with reasonable diligence and efficiency, even if that ultimately requires him to do so as a self-represented litigant. Undoubtedly, the husband would find the experience easier to endure with legal representation, but the Court does not conduct its business to meet the expectations of the husband or his former solicitor.

17. The wife has the right to expect the appeal proceeding against her in respect of the property settlement orders is conducted with reasonable haste. The solicitors also have the right to expect their cross-appeal, which will be heard in conjunction with the husband’s appeal from the common law judgment, is determined without unreasonable delay.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       9 May 2024