Dimmick & Harrison

In the case of Dimmick & Harrison, the appeal concerns an order made by a judge of the Federal Circuit and Family Court of Australia (Division 2) dismissing an application for property settlement relief under Part VIIIAB of the Family Law Act 1975 (Cth). The appeal was brought by Mr Dimmick against the executor of the estate of the late Ms Harrison. The matter has reached the appellate court on an interlocutory application by the executor seeking to review a procedural order made by the appeal registrar. The executor wants the appellant to bear the cost of preparing the appeal book and obtaining the transcript, contrary to the order made by the appeal registrar.

The court was required to determine whether the executor's application to review the procedural order made by the appeal registrar should be granted. The procedural order required the Court to prepare the digital appeal book and upload it, along with 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. The executor argued that the appellant should bear the cost of the transcript and preparation of the appeal book because that normally occurs. The court considered whether the executor's application was successful, and if not, whether the executor's lawyers should be held liable for the costs of the interlocutory application.

The court found that the Rules are a guide to sound forensic practice, not a judicial straight-jacket, and are meant to be applied flexibly to meet the ends of justice. The court held that the appeal registrar could act of their own volition and was entitled to dispense with the Rules as needed to ensure the quick, inexpensive, and efficient conduct of the proceedings. The court found that the appeal registrar's decision to prepare the appeal book was understandable given the appellant's financial circumstances and the prospect of self-representation in the appeal. The court also found that it would be absurd to compel the appellant to duplicate the process given the Court was already in possession of the transcript and had already prepared the appeal book. Therefore, the review application was dismissed, and the procedural order made by the appeal registrar stood undisturbed.

The court also considered the question of costs, finding that the executor's application for costs was not pressed because the underlying application failed. The court held that the appellant's application for costs should likely be granted because his financial circumstances are modest and the review application was wholly unsuccessful. The court invited the executor's lawyers to make submissions about their own prospective joint and several liability for the costs. Procedural orders will accommodate that request, so the question of costs can be determined later on the papers in chambers. The executor's lawyers were given time to formulate their submissions.