Dimitriou v Curtis

[2013] FCA 198

FEDERAL COURT OF AUSTRALIA

Dimitriou v Curtis

[2013] FCA 198

Citation:

Dimitriou v Curtis [2013] FCA 198

Appeal from:

Application for leave to appeal: Paul Anthony Curtis v Georgina Dimitriou [2012] FCA 604

Parties:

GEORGINA DIMITRIOU v PAUL ANTHONY CURTIS

File number:

NSD 1643 of 2012

Judge:

RARES J

Date of judgment:

1 February 2013

Legislation:

Federal Court Rules 2011 (Cth) rr 4.12, 4.14, 4.15, 4.17(b)

Cases cited:

Bienstein v Bienstein (2003) 195 ALR 225

Dimitriou v Curtis [2012] FCA 1347

Date of hearing:

1 February 2013

Place:

Sydney

Division:

GENERAL DIVISION

Category:

No catchwords

Number of paragraphs:

5

Counsel for the Applicant:

The applicant appeared in person

Counsel for the Respondent:

Mr D English

Solicitor for the Respondent:

Colin Biggers & Paisley

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1643 of 2012

BETWEEN:	GEORGINA DIMITRIOU Applicant
AND:	PAUL ANTHONY CURTIS Respondent

JUDGE:	RARES J
DATE OF ORDER:	1 FEBRUARY 2013
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be dismissed.

2.The applicant pay the respondent’s costs.  

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1643 of 2012

BETWEEN:	GEORGINA DIMITRIOU Applicant
AND:	PAUL ANTHONY CURTIS Respondent

JUDGE:	RARES J
DATE:	1 FEBRUARY 2013
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

1. On 16 November 2012, I considered that there may be one matter which might not have been addressed by the primary judge, that I identified in the course of my reasons:   Dimitriou v Curtis [2012] FCA 1347 at [8]. I ordered that Ms Dimitriou be referred to a lawyer for legal assistance in accordance with r 4.12 of the Federal Court Rules 2011 (Cth) for the purpose of advising her whether she had an arguable case on appeal, specifically on the issue of whether, at the time of the making of the sequestration order on the evidence before the primary judge, she was solvent, and for the purpose of preparing and allowing her to file and serve an affidavit as to the material before the primary judge on that issue attaching the proposed notice of appeal. I directed that such an affidavit be filed and served on or before 14 December 2012 and stood the matter over until 21 December 2012.

2. No such affidavit was filed in accordance with those directions on or before 14 December 2012 or has been to date.  On 21 December 2012, I stood the proceedings over to today.  Ms Dimitriou has filed an affidavit today that sets out in a great deal of detail conversations she said that she had with the barrister who accepted the referral which I have not read by reason of the same potentially being privileged and possibly prejudicing her.   However, the affidavit identified that she received preliminary advice from the barrister on 6 December 2012 and subsequently she then began communicating with the barrister by telephone seeking to give further material to him.

3. In the circumstances, the barrister has not sought to be excused under r 4.15 from providing legal assistance. I infer that he provided that legal assistance in accordance with the referral certificate under r 4.14, and by reason of r 4.17(b), I infer that he provided the legal assistance mentioned in the referral certificate and that the referral has now ceased to have effect.

4. In the intervening period between 6 December 2012 and today, Ms Dimitriou has not filed any material going to the substantive issue the subject of the referral.  Accordingly, I am of opinion that there is no basis for considering the viability, as a possible point of appeal, of the possibility which I raised in my earlier reasons as a basis for deferring the consideration of her application for leave to appeal.

5. Ms Dimitriou has not shown any arguable error in the reasons of the primary judge.  Moreover, no substantial injustice would be occasioned, on the material before me, for refusing leave to appeal:  Bienstein v Bienstein (2003) 195 ALR 225 at 231 [29]. For these reasons and those I gave earlier, the application for leave to appeal must be dismissed.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares.

Associate:

Dated:        7 March 2013