DAKIN & SANSBURY
[2016] FamCAFC 198
•14 October 2016
FAMILY COURT OF AUSTRALIA
| DAKIN & SANSBURY | [2016] FamCAFC 198 |
| FAMILY LAW – APPEAL – SUMMARY DISMISSAL – Where the respondent seeks summary dismissal of the appellant’s Notice of Appeal pursuant to s 96AA of the Family Law Act 1975 (Cth) – Where the grounds of appeal are incompetent and do not identify any appealable errors made by the trial judge – Where it is apparent that the purpose behind the proceedings is for the appellant to revisit and re-agitate issues previously raised in the context of her property settlement and spousal maintenance proceedings – Where those proceedings have been finalised and there is no opportunity for the appellant to re-litigate them – Where there is no prospect of success and the appeal is doomed to fail – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – where the respondent seeks his costs – Where as a result of the appellant arriving late at court there was no time to take submissions as to costs – Orders made for the parties to file written submissions. |
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| APPELLANT: | Ms Dakin | ||
| RESPONDENT: | Mr Sansbury |
| FILE NUMBER: | MLC | 3048 | of | 2010 |
| APPEAL NUMBER: | SOA | 44 | of | 2016 |
| DATE DELIVERED: | 14 October 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
JUDGMENT OF: | Strickland J |
| HEARING DATE: | 7 October 2016 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 2 May 2016 |
| LOWER COURT MNC: | [2016] FCCA 1110 |
REPRESENTATION
| THE APPELLANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Trim |
| SOLICITOR FOR THE RESPONDENT: | Cahill & Rowe Family Law |
Orders
The appellant be permitted to rely on the document headed “Part D: Grounds of Appeal” forwarded to the Southern Region Appeals Registry by the appellant on 3 October 2016 as comprising the appellant’s amended grounds of appeal.
The Notice of Appeal filed on 30 May 2016 as amended by the substitution of the said grounds of appeal be dismissed.
Within fourteen [14] days of the date of this order the respondent file and serve written submissions in support of any application for costs.
Within fourteen [14] days of the receipt of the said written submissions the appellant file and serve any written submissions in response.
Within seven [7] days of the receipt of any written submissions in response the respondent file any written submissions in reply.
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 Dakin & Sansbury 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).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 44 of 2016
File Number: MLC 3048 of 2010
| Ms Dakin |
Appellant
And
| Mr Sansbury |
Respondent
REASONS FOR JUDGMENT
Introduction
On 30 May 2016 Ms Dakin (“the appellant”) filed a Notice of Appeal against orders made by Judge Bender of the Federal Circuit Court of Australia on 2 May 2016. The appeal is opposed by Mr Sansbury (“the respondent”), and his counsel made an oral application that the Notice of Appeal be summarily dismissed pursuant to s 96AA of the Family Law Act 1975 (Cth) (“the Act”).
The orders appealed against provided for the dismissal of an application by the appellant filed on 23 February 2016 seeking leave to issue proceedings pursuant to s 102QB(2) of the Act, and a separate application in a case also filed on 23 February 2016.
On 11 August 2016 I conducted a directions hearing in relation to the Notice of Appeal. During the course of that hearing I indicated to the appellant that having read her Notice of Appeal, her grounds of appeal were incompetent. They comprised 23 pages of narrative doing nothing more than making general assertions, many of which were completely irrelevant to the orders the subject of the appeal, and importantly, it was impossible to identify from that narrative alleged errors by the trial judge that could properly be the subject of an appeal. As a result the appellant sought an adjournment to prepare and file an Amended Notice of Appeal, and that application was granted over the objection of the respondent.
The matter next came before this court on 22 September 2016 when the adjourned directions hearing took place by telephone link. The appellant had not filed an Amended Notice of Appeal, but she informed the court that she had obtained legal advice and she had prepared an Amended Notice of Appeal which she would be able to file and serve shortly. She also claimed that she was suffering from ill-health, and that was why she had been unable to file the Amended Notice prior to the hearing. In that regard I observe that the appellant provided a medical certificate to the court, but that certificate was completely inadequate. In any event, during the course of the hearing it became impossible to contain the appellant, and to conduct a rational discussion with her. She insisted on making entirely irrelevant submissions about this matter, and in the end result I determined that the hearing should be adjourned to 7 October 2016, when it could be heard in the Melbourne Registry with both parties present. On that basis, and given the earlier intimation from the appellant, an order was also made providing for her to file and serve an Amended Notice of Appeal on or before the close of business on Friday 30 September 2016.
The appellant failed to comply with that order, and instead, on 3 October 2016 she forwarded to the Southern Region Appeals Registry a document headed “Part D: Grounds of Appeal”. That document was not received for filing, but on 7 October 2016 the appellant sought to rely on it, and I permitted her to do so, treating that document as containing her amended grounds of appeal.
Relevant procedural background
These proceedings have a long history in the former Federal Magistrates Court of Australia, and then the Federal Circuit Court of Australia, as well as in the Full Court of the Family Court of Australia.
That history needs to be understood for the purposes of this appeal, and conveniently the detail of that up to and including March 2015 is set out in [3] – [48] of the reasons for judgment of the trial judge delivered on 3 July 2015. However, I highlight the following:
a)On 6 April 2010 the appellant filed an Initiating Application seeking orders for property settlement pursuant to s 90SN of the Act, as well as an order for spousal maintenance.
b)On 30 January 2012 the application for property settlement orders and spousal maintenance was dismissed, and final orders were made as sought by the respondent to the effect that each party retain to the exclusion of the other, all property and superannuation owned by them, and that each party indemnify the other against any liabilities encumbering any item of property retained by them.
c)On 7 February 2012 the appellant filed a Notice of Appeal against those orders, and eventually on 3 August 2012 that appeal was dismissed.
d)On 6 February 2013 the appellant filed an Initiating Application seeking that the orders made on 30 January 2012 be set aside pursuant to s 90SN(1)(a) of the Act. Subsequently the respondent made an application that that application be summarily dismissed, and on 11 July 2013 and 24 August 2013 orders were made dismissing the appellant’s application, and restraining the appellant from filing any further application relating to property matters without prior leave of the court.
e)On 6 November 2013 the appellant filed an application in an appeal seeking an extension of time to file a Notice of Appeal against the orders made on 24 August 2013. That application was subsequently amended to also seek an extension of time to appeal against the order made on 11 July 2013.
f)On 10 February 2014 the application in an appeal seeking an extension of time was dismissed on the basis that there was no arguable case on appeal.
g)On 1 April 2014 the appellant filed an application in an appeal seeking a review of the Appeal Registrar’s decision to uplift and return her application in an appeal, supporting affidavit and draft Notice of Appeal which she had filed on 25 February 2014. That application was subsequently dismissed by this court.
h)On 1 September 2014 the appellant filed an Initiating Application. The trial judge describes this as “a lengthy and confusing document” and said that “it is difficult to ascertain with complete precision the orders sought by the [appellant]”. However, the detail of the final orders and the interim orders sought in this document are set out by the trial judge in [39] and [40] of the reasons for judgment delivered on 3 July 2015.
i)On 27 October 2014 the appellant filed an Amended Initiating Application which again was described by the trial judge as “very lengthy” and that it was “difficult to identify with precision the exact orders sought by the [appellant]” (see [41] of the reasons for judgment delivered on 3 July 2015).
j)In [42] of the reasons for judgment delivered on 3 July 2015 the trial judge described the initiating application and amended initiating application as follows:
Whilst the Initiating Application and Amended Initiating Application filed by the [appellant] are lengthy and somewhat difficult to understand, the “bottom line” is the [appellant] is again seeking to bring an application for orders in relation to property and spousal maintenance against the Respondent.
k)In response to these applications the respondent sought that they be summarily dismissed, and that orders be made against the appellant pursuant to s 102QB of the Act.
On 17 April 2015 the trial judge heard the respondent’s application and on 3 July 2015 made the following orders:
(1)Pursuant to s 102QB(2)(a) of the Family Law Act 1975 (“the Act”) the Initiating Application filed on 1 September 2014 as amended on 27 October 2014 is dismissed.
(2)Pursuant to s 102QB(2)(b) of the Act the Applicant [MS DAKIN] is prohibited from instituting proceedings under the Act against or in relation to the Respondent [MR SANSBURY] without first being grated leave to commence that proceeding pursuant to section 102QE of the Act.
On 23 February 2016 the appellant filed two applications in a case, one effectively seeking leave to institute proceedings against the respondent, and the other being those proceedings. In the latter application a number of orders were sought, but relevantly seeking in effect orders for an adjustment of property interest pursuant to s 90SN of the Act. In other words, seeking to
re-litigate the application which had been dismissed in 2012, and in respect of which an appeal was subsequently dismissed.
In support of those applications the appellant filed an affidavit which can only be described as a rambling and incoherent document of over 40 pages.
On 2 May 2016 her Honour made the orders dismissing those applications, and which orders are the subject of the Notice of Appeal filed on 30 May 2016.
Leave to appeal
The appellant failed to seek leave to appeal despite leave being required. Although the orders made on 3 July 2015 pursuant to s 102QB(2) of the Act are final orders (s 102QB(5)), the application for leave to institute proceedings is clearly interlocutory and procedural, and thus requires leave.
There is also a question as to whether such an application requires leave in any event, on the basis that it is an application caught by the order made pursuant to s 102QB(2)(b) of the Act, prohibiting the appellant from instituting proceedings without first being granted leave to commence those proceedings. In other words, the issue is whether that order prohibits an appeal being filed without leave. That question depends upon the interpretation of the definition of “proceedings” and of “institute” in the Act, and on a consideration of relevant authorities in both this court and the Federal Court of Australia. However, although at an earlier directions hearing I requested the counsel for the respondent to give consideration to this issue, he did not do so, and I did not hear any argument in relation to the same. I note of course that the appellant is without legal representation, and with all due respect to her, it was always unrealistic to expect her to adequately address this issue, or at all. Thus, I am not in a position to provide a definitive answer to this question, but on the research that I have undertaken, my preliminary view is that leave is required on the basis that an appeal is caught by the order requiring leave to institute proceedings.
However, and as referred to above, this question may be academic given that because the order requiring leave is an interlocutory or procedural order, leave to appeal is required in any event, but at the very least there would be different principles to be applied.
In any event, and to repeat, the appellant did not apply for leave. Despite this, and in the circumstances, I propose to consider whether the amended grounds of appeal have a reasonable chance of success. If they do not, then there is no point in requiring the appellant to satisfy the requirements for leave to appeal. Equally, if they do have a reasonable chance of success, then it would be unnecessary and inappropriate to require the appellant to also satisfy the requirements of leave to appeal.
the relevant legal principles
As referred to above the application by the respondent is for summary dismissal of the Notice of Appeal pursuant to s 96AA of the Act. That section provides as follows:
APPEAL MAY BE DISMISSED IF NO REASONABLE PROSPECT OF SUCCESS
96AA(1) If:
(a) an appeal has been instituted in a court under this Part; and
(b)having regard to the grounds of appeal as disclosed in the notice of appeal, it appears to the court that the appeal has no reasonable prospect of success (whether generally or in relation to a particular ground of appeal);
the court may, at any time, order that the proceedings on the appeal be dismissed (either generally or in relation to that ground).
96AA(2)This section does not limit any powers that the court has apart from this section.
In terms of any relevant authority in relation to summary dismissal, the leading case continues to be Lindon v Commonwealth of Australia (No 2) (1996) 136 ALR 251. There, Kirby J set out six principles to be applied in applications for summary relief (at page 256). Not all of those principles are relevant to this matter, but for completeness I set them all out hereunder:
1.It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against government and other powerful interests. This is why relief, whether under O 26, r 18 or in the inherent jurisdiction of the court, is rarely and sparingly provided.
2.To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
3.An opinion of the court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination. Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment.
4.Summary relief of the kind provided for by O 26, r 18, for absence of a reasonable cause of action, is not a substitute for proceeding by way of demurrer. If there is a serious legal question to be determined, it should ordinarily be determined at a trial for the proof of facts may sometimes assist the judicial mind to understand and apply the law that is invoked and to do so in circumstances more conducive to deciding a real case involving actual litigants rather than one determined on imagined or assumed facts.
5.If, notwithstanding the defects of pleadings, it appears that a party may have a reasonable cause of action which it has failed to put in proper form, a court will ordinarily allow that party to reframe its pleading. A question has arisen as to whether O 26, r 18 applies to part only of a pleading. However, it is unnecessary in this case to consider that question because the Commonwealth’s attack was upon the entirety of Mr Lindon’s statement of claim.
6.The guiding principle is, as stated in O26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
(footnotes omitted)
For the purposes of the application here, I highlight the first, the second, the third and the sixth principles.
Discussion
In relation to the amended grounds of appeal, four grounds of appeal are set out, namely:
Ground 1: Failure to identify Principles and apply fixed rules
Ground 2: Orders of a Superior Court
Ground 3: Standard of Hearing
Ground 4: Inconsistent Orders with review of judgment
As can be seen, those grounds of appeal are simply inadequate. Further, beneath each of those grounds the appellant has set out a narrative which does not assist in any way in identifying relevant appealable errors made by the trial judge. Indeed, much of the narrative is rambling and incoherent.
I have attempted to make some sense of the grounds of appeal despite the deficiencies identified, but unfortunately that has proven impossible. Significantly, it is difficult to identify anything that specifically addresses the orders made and/or the reasons given by the trial judge. What is readily apparent though from that narrative is that the purpose behind the proceedings is to revisit and re-agitate the issues that the appellant has previously raised in the context of her property settlement and spousal maintenance proceedings. To repeat though, those proceedings have been finalised, and there is no opportunity for the appellant to re-litigate them. As the trial judge said at [12]:
12.The information and allegations contained in the material filed by the Applicant de facto Wife on 23 February 2016 and the submissions made this day have been placed before the Court by the Applicant previously on multiple occasions.
Further, her Honour said this at [16]:
16.The Orders sought by the Applicant in the event leave were granted to her are the same orders the Applicant has sought on five previous occasions. It is the Applicant’s applications for orders in these terms that were found by me to be vexatious proceedings on 3 July 2015.
The question here is whether there is any reasonable prospect of success based on a consideration of the grounds of appeal. As is apparent from those grounds, they are simply incompetent; they do not identify any appealable error by the trial judge, and not only is there no reasonable prospect of success, there is no prospect of success and the appeal is doomed to fail
In these circumstances I propose to dismiss the Notice of Appeal.
Costs
In relation to the issue of costs, because the appellant arrived at court one hour late, there was no time on 7 October 2016 to take submissions as to costs depending upon the result of the oral application of the respondent. Accordingly, I will set out in my orders a regime for the parties to make written submissions in relation to that issue.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the
reasons for judgment of the Honourable Justice Strickland delivered on 14 October 2016.
Associate:
Date: 14 October 2016
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