Dimmick & Harrison

[2023] FedCFamC1A 30

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Dimmick & Harrison [2023] FedCFamC1A 30

Appeal from:

Dimmick & Harrison [2022] FedCFamC2F 1329

Appeal number:

NAA 14 of 2023

File number:

SYC 4298 of 2021

Judgment of:

AUSTIN J

Date of judgment:

22 March 2023

Catchwords:

FAMILY LAW – APPEAL – Application in an Appeal – Review of decision – Where the respondent to the appeal seeks review of an order made by the appeal registrar that the Court prepare the appeal book and provide the transcript – Where the sum total of the respondent’s proposition is that the appellant should be forced to endure the cost of preparing the appeal book and purchasing the transcript because that normally occurs – Where the Court is already in possession of the transcript and has already prepared the appeal book – Where it would be absurd to compel the appellant to duplicate the process – Application for review dismissed – Costs – Where the respondent’s application was hopelessly misconceived – Procedural orders made for the parties and the respondent’s lawyers to file written submissions about the respondent’s lawyers’ prospective joint and several liability for personal costs order.

Legislation:

Family Law Act 1975 (Cth) Pt VIIIAB

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.31, 12.15, 13.19

Number of paragraphs:

20

Date of hearing:

22 March 2023

Place:

Newcastle (via video link)

Solicitor for the Appellant:

G & D Lawyers

Counsel for the Respondent:

Mr Galapo

Solicitor for the Respondent:

Jenman Lawyers

ORDERS

NAA 14 of 2023
SYC 4298 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR DIMMICK

Appellant

AND:

EXECUTOR ESTATE OF THE LATE MS HARRISON

Respondent

order made by:	AUSTIN J
DATE OF ORDER:	22 March 2023

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 17 March 2023 is dismissed.

2.The question of liability for the appellant’s costs of this interlocutory dispute is reserved for determination on the papers in chambers, for which purpose:

(a)The executor, the executor’s solicitor (Ms Jenman) and the executor’s counsel (Mr Galapo) shall file written submissions by Friday 7 April 2023; and

(b)The appellant shall file written submissions in response by Friday 21 April 2023.

3.Otherwise, the Response to an Application in an Appeal filed on 21 March 2023 is dismissed.

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 Dimmick & Harrison has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. This appeal lies from an order made by a judge of the Federal Circuit and Family Court of Australia (Division 2) dismissing the appellant’s application for property settlement relief against the late respondent under Pt VIIIAB of the Family Law Act 1975 (Cth) (“the Act”) after having first declared the existence of a de facto relationship between the parties in the period between 2000 and 2012.

2. The appeal will be listed for hearing before a single judge in due course but, presently, an interlocutory application brought by the late respondent’s executor (“the executor”) requires determination.

3. On 8 March 2023, the appeal registrar made procedural orders to facilitate the efficient progression of the appeal to hearing. Among the orders made by the appeal registrar was this:

   5.Noted that within 7 days the National Appeal Registry Sydney will prepare the digital appeal book and will upload both the digital appeal book and the digital transcript into the Court’s IT system and make them available to all parties and their lawyers to download from the Commonwealth Courts Portal.

4. On 17 March 2023, the executor filed an Application in an Appeal seeking to review the procedural orders made by the appeal registrar. The executor instead wants procedural orders made in these terms:

   1.That [the appellant] pay for the cost of the Transcript of the final hearing heard before [the primary judge] on 14, 15 and 31 March 2022.

   2.        That [the appellant] pay for the preparation of the Appeal Book.

   3.        That [the appellant] pay [the executor’s] costs of this application.

5. As can be seen, the review application only challenges Order 5 made by the appeal registrar, which order shifts from the appellant to the Court the burden of preparing the appeal book and furnishing the transcript. The executor wants that burden to remain on the shoulders of the appellant, as rr 13.19(1) and 13.19(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) usually provide.

6. The appellant opposed the application by filing a Response to an Application in an Appeal on 21 March 2023, supported by his affidavit filed simultaneously.

7. The reason the executor wants the appellant to bear the cost burden of preparing the appeal book and obtaining the transcript is explained in the accompanying affidavit, filed by the executor’s solicitor on 17 March 2023, in these terms:

   8.On 7 March 2023, [the appeal registrar] advised that he had secured the digital transcript for the hearing before the primary Judge and has uploaded the consolidated digital transcript to the Commonwealth Courts Portal. [The appeal registrar] did so without a formal application being made by the Appellant seeking the Court to pay for the transcript.

   9.On 8 March 2023, during the directions hearing, [the appeal registrar] also advised that the Court will be preparing the Appeal Books and therefore the Appellant will not have to worry about the costs of the Appeal Books or the Transcript. [The appeal registrar] did not ask for submissions to be made prior to his decisions to provide the Appellant with the Transcript and [the appeal book] at the Court's expense.

   …

   12.In this instance the Appellant neither made any application to the court to prepare the Appeal Books, nor made any application to the court that the court pay for the Transcript.

   13.Further, in this instance, not only did [the appeal registrar] prepare the digital books for the Appeal without an Application, but also went ahead and provided the transcript for the Appeal to the Appellant free of charge on the 7th March, 2023, the day prior to the Directions Hearing without the Appellant initiating any Application

   …

   15.Such an unsolicited act on behalf of [the appeal registrar] was inappropriate and unjust and in such circumstances, our client the Respondent was denied procedural fairness as the transcript was slrady [sic] provided to the Appellant before the Directions Hearing

   …

   17.My client, the Respondent has been put to considerable prejudice by the actions of [the appeal registrar].

8. There are several obvious points to be made in answer to this admixture of evidence and submissions.

9. First, the Rules are a guide to sound forensic practice, not a judicial straight-jacket. They are meant to be applied flexibly to meet the ends of justice. It does not matter that the appellant did not apply for relief from compliance with the Rules. The appeal registrar could act of his own volition and was entitled to dispense with the Rules as needed (r 1.31) to ensure the quick, inexpensive and efficient conduct of the proceedings (s 67(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).

10. Secondly, if the transcript of the hearing before the primary judge was already in the hands of the appeal registrar at the time of the procedural hearing (as it was), there was no point served by holding it back from the parties. It would have been perverse to do so.

11. Thirdly, the executor asserts the appeal registrar was informed at the directions hearing that the appellant had been denied legal aid and was still awaiting determination of his appeal against that decision to the Legal Aid Review Committee. The appeal registrar’s decision to prepare the appeal book was therefore understandable when there was some real prospect the appellant would not have any legal representation in this appeal and, as a self-represented litigant, might experience difficulty and thereby cause delay in having to do so himself. It is now known the decision to refuse the grant of legal aid to the appellant has been affirmed, but he intends to instruct lawyers in the appeal with financial assistance from his family. However, that does not affect the decision which must now be made afresh.

12. Fourthly, the executor seeks an order that the appellant “pay” for the preparation of the appeal book, but the appeal registrar – an employee of the Court – prepared the appeal book using documents extracted from the Court record. No invoice was raised for the preparation of the appeal book. There is no invoice to pay. The order proposed by the executor, if made in those terms, would be incapable of implementation.

13. Fifthly, the executor’s submission that the appeal registrar’s decision to prepare the appeal book and to furnish the transcript to the parties was “inappropriate and unjust” is just nonsense. So too are the submissions that the executor was “denied procedural fairness” and “put to considerable prejudice”, which could not be elaborated in any coherent way by the executor when challenged to do so. Order 5 only alleviated a burden which fell upon the appellant. It did not oblige the respondent to do, or abstain from doing, anything. The executor complained he had already spent some $2,500 acquiring part of the transcript, but that has no bearing on this dispute because he could never recover such voluntary expenditure regardless of whether the burden of purchasing the full transcript falls upon the appellant or the Court.

14. The sum total of the executor’s proposition (which borders on being contumacious) is that the appellant should be forced to endure the cost of preparing the appeal book and purchasing the transcript simply because that normally occurs, notwithstanding the transcript is already available and the appeal book has already been efficiently prepared by the Court. The orders proposed by the executor are unashamedly punitive.

15. The review application requires the de novo hearing of the appeal registrar’s decision, embodied in Order 5. Given the Court is already in possession of the transcript, has already prepared the appeal book, and has already furnished the parties with both the appeal book and transcript in electronic format, it would be absurd to compel the appellant to duplicate the process. The review application fails and Order 5 made by the appeal registrar stands undisturbed.

16. Both parties sought the costs of this puerile interlocutory dispute against the other.

17. The executor’s application for costs was not pressed because the underlying application failed, though it took some time to extract the concession.

18. The appellant’s application for costs should likely be granted because his financial circumstances are modest and the review application was wholly unsuccessful. In fact, the application was hopelessly misconceived. The appellant quantified his scale party/party costs at $1,291.45, with which quantum the executor took no issue.

19. It is difficult to imagine the review application was an idea conceived by the lay executor. Most likely, it was the idea of his lawyers, which raised the question of whether they should bear the costs on account of their professional conduct being “improper or unreasonable” (rr 12.15(1)(c) and 12.15(4)(d)). Although the appellant did not seek costs against the executor’s lawyers, such an order can be made on the Court’s initiative (r 12.15(3)).

20. To afford the executor’s lawyers procedural fairness, they were invited to make submissions about their own prospective joint and several liability for the costs. After a short adjournment to enable them to consider their position, they sought more time within which to formulate their submissions. Procedural orders will accommodate that request, so the question of costs can be determined later on the papers in chambers.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       24 March 2023