Decaux and Sabri
[2018] FamCAFC 39
•6 March 2018
FAMILY COURT OF AUSTRALIA
| DECAUX & SABRI | [2018] FamCAFC 39 |
| FAMILY LAW – APPLICATION IN AN APPEAL – Review of registrar’s orders – Whether the Court should provide the applicant with a copy of the transcript – Where the transcript is not essential to the prosecution of the appeal – Whether the Court should prepare the appeal books – Where there is no evidence to support the applicant’s assertion that preparing the appeal books would cause him exceptional hardship – Whether the Registrar should be directed not to take further steps in this matter due to apprehended bias – Where the Court has no power to make such a direction – Whether the Registrar’s orders as to the filing of appeal books and electronic transcript should be stayed – Orders made extending the time for filing the appeal books and electronic transcript – Application otherwise dismissed. |
| Family Law Rules 2004 (Cth) rr 22.13, 22.18, 22.19 |
| Decaux & Sabri [2017] FamCAFC 32 Decaux & Sabri (No 2) [2017] FCCA 2970 Decaux & Sabri (No 3) [2017] FCCA 2973 Finch & Shibo (No 2) [2016] FamCAFC 108 Gallo v Dawson (1990) 93 ALR 479 House v The King (1936) 55 CLR 499 Sampson & Hartnett (2013) FLC 93-542 |
| APPLICANT: | Mr Decaux |
| RESPONDENT: | Ms Sabri |
| FILE NUMBER: | BRC | 7680 | of | 2016 |
| APPEAL NUMBER: | EA | 119 | of | 2017 |
| DATE DELIVERED: | 6 March 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Aldridge J |
| HEARING DATE: | 1 March 2018 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 3 November 2017 |
| LOWER COURT MNC: | [2017] FCCA 2973 |
REPRESENTATION
| THE APPLICANT: | In person |
| THE RESPONDENT: | In person |
Orders
The time in which the applicant is to file the appeal books and electronic transcript is extended up to and including 14 March 2018.
The Application in an Appeal filed on 5 February 2018 is otherwise dismissed.
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 Decaux & Sabri 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 119 of 2017
File Number: BRC 7680 of 2016
| Mr Decaux |
Applicant
And
| Ms Sabri |
Respondent
REASONS FOR JUDGMENT
By an Application in an Appeal filed on 5 February 2018, Mr Decaux (“the applicant”) seeks the following orders:
1.Order that both transcripts for the hearing before Judge Terry dated the 2nd and 3rd of November 2017 be supplied in accoradnce with the fee waiver provided to the court and also attached as part of my exhibits.
2.It is declared that the Appellant is a self represented litigant who is unable to properly prepare the required appeal books and it is therfore ordered that the court prepares the appeal books as required.
3.That due to the apprehened bias [Registrar] Cameron take no further part in any matters invoving [Mr Decaux] either directly or indirectly.
4.It is ordered that all the documents in the Appellants draft index which forms part of the Exhibits are to be added to the Appeal Book.
5.It is ordered that the orders made by the Registrar on the 24th of January 2018 be stayed pending the appeal and relevant time limits be extended accordingly.
6.That the order of the Registar be amended as required.
(As per the original)
Those orders are opposed by Ms Sabri (“the respondent”).
In order to place the application in context, it is necessary to give some history of the proceedings the subject of the appeal and the steps taken in relation to the appeal itself. This history is largely taken from the reasons of Judge Terry of 2 November 2017 (Decaux & Sabri (No. 2) [2017] FCCA 2970 (“Decaux (No 2)”)), so there may well be aspects of this chronology with which the applicant does not agree.
On 8 August 2016 the applicant filed an Initiating Application in the Federal Circuit Court of Australia in Brisbane. He sought a declaration that he and the respondent had been in a de facto relationship and sought an adjustment of interests in their property.
At the request of the respondent, Judge Baumann (as his Honour then was) made an order on 2 November 2016 that the matter be transferred from the Brisbane Registry to the Newcastle Registry, in which vicinity the respondent lives. An application for leave to appeal against that order was dismissed by Murphy J on 28 February 2017 (Decaux & Sabri [2017] FamCAFC 32).
The matter came before the primary judge on 5 April 2017 for directions. The hearing was listed for 2 and 3 November 2017 as to the issue of whether or not the parties were in a de facto relationship. The parties were ordered to file a trial affidavit and any amended application or response by 6 October 2017. Neither party did so.
On 16 October 2017 the applicant filed an Application in a Case effectively seeking an adjournment of the proceedings. That was listed for hearing on the first day of the trial, namely 2 November 2016.
On 31 October 2017, the respondent filed her trial affidavit and served it on the applicant the following day.
The primary judge observed that, in the ordinary course, the late service of this affidavit would result in the matter being adjourned (Decaux (No. 2) at [18]). However her Honour had concerns about aspects of the applicant’s conduct.
The applicant had commenced proceedings against the respondent and other persons in the District Court of New South Wales, District Court of Queensland, Supreme Court of New South Wales, Local Court of New South Wales, Magistrates Court of Queensland and the Supreme Court of Queensland. At [24] the primary judge noted that
the applicant boasted to me during his submissions that his applications in other courts amounting to claims worth millions of dollars had already been adjourned on his application, and he seemed to be suggesting that I should fall in with other judicial officers and adjourn this particular application.
Her Honour continued that this “lends some colour of credibility to a claim that all of the applications are simply part of a campaign of harassment” (at [24]).
Her Honour then dealt with the applicant’s assertions that a police officer acting in collusion with the respondent had stolen all his relevant documents so that he could not prepare for the hearing. Her Honour noted that the alleged theft took place in February 2017, well before the directions hearing which fixed the matter for hearing. No such difficulty with the loss of the documents had been identified until the time of the adjournment application.
Her Honour concluded:
33.So I have got a concern about whether the application is bona fide in the first place, I have a concern about whether there is merit in the claim that the applicant cannot run his case without the documents and a concern that adjourning the matter because of the lack of documents is basically putting it into limbo, giving it, if you like, as the respondent’s counsel said, an indefinite adjournment.
Her Honour referred to the applicant’s assertions that he would never bring his witnesses to Newcastle to give evidence because if he did so, those witnesses would be murdered by the respondent and her “goons” (at [10]). Her Honour considered that if that was the case there was no point in adjourning the matter and wasting further court time because the matter could never proceed.
The primary judge therefore refused the adjournment but considered that if the applicant could take some steps to put whatever evidence he could by the following morning to demonstrate his bona fides, she would reconsider the adjournment application.
On the following morning, 3 November 2017, the applicant did not appear and the matter proceeded in his absence. On that day the primary judge gave oral reasons for dismissing the Initiating Application filed by the applicant and ordering him to pay the respondent’s costs of the proceedings fixed in the sum of $16,705 (Decaux & Sabri (No. 3) [2017] FCCA 2973).
A Notice of Appeal was filed on 13 November 2017 and an Amended Notice of Appeal filed on 4 January 2018. In accordance with r 22.13 of the Family Law Rules 2004 (Cth) (“the Rules”) the applicant in due course filed his draft appeal index. At a conference with Registrar Cameron on 24 January 2018 the Registrar edited the draft index prepared by the applicant and removed a number of documents. The Registrar also directed that the applicant file and serve the appeal books and an electronic copy of the transcript on or before 7 March 2018.
As I have said, the present application dealing with those orders was filed on 5 February 2018.
Should the Court provide a copy of the transcript?
The Court is not provided with the funding to provide transcripts to litigants and does not do so save in exceptional circumstances: Sampson & Hartnett (2013) FLC 93-542 (“Sampson”) at [80] and [83]; Finch & Shibo (No. 2) [2016] FamCAFC 108 at [8].
The Court in Sampson pointed to a number of matters that may be considered in determining an application for the provision of transcripts (at [16]):
·Whether the case is a financial or parenting case;
·Whether the whole transcript or part thereof is necessary for the determination of the appeal or part of the appeal;
·The likely cost of the relevant transcript and whether the appellant can afford all or part of the cost of the transcript;
·The proportionality of the cost of the transcript to the appellant’s anticipated costs in relation to the whole appeal, including the preparation of appeal books;
·The prima facie merits of the appeal;
·Whether the question of providing a transcript can be left to the Full Court hearing the appeal;
·Any other relevant facts or circumstances.
The Court will more readily provide a transcript in a parenting case. This is not such a case as it is concerned only with the financial relationship between the parties.
The applicant was unable to identify any particular reason why the transcript was necessary to show error on the part of the primary judge. For example, he did not assert that he made submissions to the primary judge which were not dealt with in her Honour’s reasons.
He was of course present throughout the hearing on 2 November 2017. That has enabled him, for example, to appeal against the primary judge’s admission into evidence of a number of documents that are set out, for example, in ground 4 of the Amended Notice of Appeal.
I accept that the transcript would be of some assistance to the applicant in proceeding with his appeal but have not been satisfied that the transcript or any part of it is essential to permit any particular ground to be pursued.
I note that no oral evidence was called on either day.
The applicant gave no evidence as to the likely cost of the transcript and gave no evidence of his financial position other than to assert that he was impecunious and “on a fee waiver”. There are degrees of impecuniosity. In the absence of evidence it is impossible to weigh the cost of obtaining the transcript against the financial means of the applicant.
It is likely that the transcript, depending on its length, could be a significant component of the cost of running the appeal. The appeal books are likely to be short and not expensive to prepare.
It is apparent from the reasons of the primary judge that there was only one affidavit before the Court on 2 and 3 November but, apparently, a number of exhibits. Ordinarily exhibits do not form part of the appeal books although, of course, copies of them can be handed to the bench during the course of argument if they are essential to a point being made. On occasion, such an exhibit is so obviously essential to the running of an appeal that it is included in the appeal books.
Thus in the present circumstances there is little to go in the appeal books and it is likely that the cost of the transcript would be a significant part of the cost of the overall preparation of the appeal.
It is not appropriate to say a great deal on the subject of the merits of the appeal, except to point out that effectively the applicant’s appeal is against the primary judge’s refusal to adjourn the proceedings. The applicant also made it clear in his oral submissions that the other particular point of complaint was the costs order that was made against him. I simply observe that leave to appeal would be needed in respect of the first and that both complaints concern exercises of discretion quintessentially reserved to trial judges. In order to succeed on an appeal against those two orders, the applicant would have to establish an error of principle: House v The King (1936) 55 CLR 499 at 504–505.
It is appropriate to record at this stage that the applicant relies on some 25 grounds of appeal, many of which are discursive and many of which do not assert error on the part of the primary judge other than her Honour’s refusal to take the course proposed by the applicant.
I do not consider the question of whether to provide a transcript can be left to the Full Court hearing the appeal because if that Court decided to provide the transcript it would necessitate an adjournment of the appeal.
The applicant’s submissions proceeded on the basis that the Family Court of Australia already holds a copy of the transcript. It does not. When the applicant was informed of this he did not appear to accept this statement. Nonetheless that is the position.
The applicant also worked on the assumption that the primary judge had a copy of the transcript. That does not emerge from her reasons. Her reasons of 2 and 3 November were given orally on those days. Her Honour’s reasons for 3 November commenced with the paragraph:
1.These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
I take the reference to “the transcript” there to be a reference to the transcript of the oral reasons. I do not see any other reference to transcript in her Honour’s reasons.
The fact that this is a case concerning financial matters only is a significant factor against the Court providing the transcript. I am not satisfied that the transcript is essential to the prosecution of the appeal. I have doubts as to whether the applicant’s stated impecuniosity actually prevents him from obtaining the transcript because he seems to have the financial ability to pursue many actions in different courts in different venues against the respondent. I am not satisfied that exceptional circumstances have been demonstrated or that it would be in the interest of justice that the Court provide the transcript to the applicant. This order will be refused.
Should the Court prepare the appeal books?
The Court does not prepare appeal books for parties, again, except in very exceptional circumstances. This is not such a circumstance.
I reject the applicant’s submission that every other Court of Appeal including the High Court, the Supreme Court of Queensland and the Supreme Court of New South Wales, as a matter of course, prepare the appeal books for self‑represented litigants. As far as I am aware, they do not do so.
The preparation of appeal books by the Court is governed by r 22.18 of the Rules, which provides:
(1)The appellant or, if so ordered, the cross‑appellant is responsible for preparing and filing the appeal books, including arranging to obtain any transcript required to be included in the appeal books.
(2)If a Judge or Regional Appeal Registrar is satisfied that preparing the appeal books would impose exceptional hardship on the appellant, the Judge or Regional Appeal Registrar may order either of the following to prepare and file the appeal books:
(a)a respondent;
(b)the Regional Appeal Registrar.
Note:If the Regional Appeal Registrar prepares the appeal books, the appellant or cross‑appellant (if so ordered) is still responsible for obtaining the transcript (see rule 22.27).
The evidence adduced by the applicant is incapable of satisfying me that the preparation of the appeal books would impose exceptional hardship upon him.
The applicant submitted that he was entitled to have the Court prepare the appeal books because he was unemployed, because he was on a fee waiver, because it would be in the interest of justice and it would be a denial of procedural fairness. Those considerations would apply to almost every self‑represented litigant, including respondents, and the Court is simply not in a position to oblige. As has been observed, being self-represented is not a privilege but a misfortune (Gallo v Dawson (1990) 93 ALR 479 at 481 per McHugh J).
The applicant also submitted that he was not in a position to prepare the appeal books because he no longer had the relevant documents because a police officer acting in company with the respondent had stolen them. He was, however, quite unable to tell me what documents had been stolen that he needed for the appeal but offered to do so if he was given some time. I declined to allow the applicant that time given that his application was filed on 5 February 2018 and there has been ample time for that consideration to have been undertaken.
This order will not be made.
Should the Registrar be directed not to act in this matter?
I do not consider that I have the power to direct that Registrar Cameron no longer take any steps in relation to this matter. If any application is to be made that the Registrar no longer deal with this matter, that is an application that must be made to the registrar himself. I should also add that the only basis I can identify from the applicant’s material for the application for the disqualification of the Registrar is that the Registrar did not accept the applicant’s draft appeal index or accede to a request that the Court provide a transcript or appeal books. None of those steps, in my opinion, shows bias. This order will not be made.
Should the applicant’s draft appeal index be reviewed?
As I have already indicated the Registrar refused to include in the appeal index a number of documents proposed the applicant.
The contents of the appeal books are governed by r 22.19 which provides:
22.19Contents of appeal books
(1)Unless otherwise ordered under paragraph 22.17(2)(a), the appeal books must contain only the following documents:
(a)documents put in evidence at the hearing or trial to which the appeal relates and which are relevant to the grounds of appeal and necessary to enable the court hearing the appeal to reach its decision;
(b)if the appeal involves a challenge to the exclusion of evidence, the document:
(i) that is the subject of the challenge; and
(ii) that was tendered, but not admitted as evidence, at the hearing or trial to which the appeal relates.
(2)The appeal books must not mention any offer to settle that has been made or the terms of the offer unless the terms of the offer are relevant to the appeal.
The applicant’s draft appeal index is Exhibit 13 to his affidavit. It emerges from that draft that the additional documents he wishes to have inserted in the appeal books are two emails sent to the primary judge and the Registry Manager and a Registrar of the Family Court at Newcastle on 18 September 2017. The first of those emails annexed some 9 documents and the second some 29 documents. These annexures included letters to the primary judge, letters to the Chief Justice of the Family Court, various orders from other Courts, complaints made to people such as the Commissioner of Police and the Crimes Commission. I do not propose to identify them all.
Litigation in Australia is conducted in open court and not by correspondence to the judge’s chambers. Unless this material was presented to the judge in open court it is not evidence in the proceedings and ordinarily, in the absence of directions permitting such a course, should not and, indeed, cannot be relied upon by a primary judge. The applicant does not suggest that any of this material was placed before the primary judge on 2 November 2017. That is sufficient to exclude those documents from the appeal books.
The point of r 22.19 is to ensure that the costs of the parties are kept to a minimum by not including unnecessary documents in the appeal books. As the appeal books are read by all the parties and their lawyers, the inclusion of unnecessary documents greatly extends the preparation of the appeal and increases the costs involved. Further, the time of the judges dealing with the appeal is also taken up by trying to understand unnecessary documents. It is for this reason that there are restrictions on what may be placed in the appeal books.
As I have said, if it emerges during the hearing of the appeal that these documents were in fact placed before the primary judge and have relevance to a ground of appeal, then they may be handed to the Court. The Court may then decide to receive them.
However I am not satisfied, at present, that any of the documents listed in paragraph 6 of the applicant’s draft appeal index should be included in the appeal books.
Should the orders made by the Registrar on 24 January 2018 be stayed and relevant time limits extended accordingly?
If the orders of the Registrar of 24 January 2018 were stayed, the appeal would never come on for hearing. That course therefore will not be followed.
No submissions were made as to an extension of time. Indeed, such submissions would seem to be pointless because the applicant insisted that he could not and would not obtain the transcript or prepare the appeal books. Nonetheless, I consider that he should be given some opportunity after receipt of this judgment to attend to these matters should he reconsider. Accordingly, I will extend the time for filing the appeal books and electronic transcript up to and including 14 March 2018.
The application is otherwise dismissed.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 6 March 2018.
Legal associate:
Date: 6 March 2018
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