Dimov & Metzger

[2025] FedCFamC1A 50

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Dimov & Metzger [2025] FedCFamC1A 50

Appeal from:

Metzger & Dimov (No 4) [2025] FedCFamC2F 262

Appeal number:

NAA 105 of 2025

File number:

BRC 7395 of 2022

Judgment of:

AUSTIN J

Date of judgment:

20 March 2025

Catchwords:

FAMILY LAW – APPEAL – Practice and procedure – Show cause – Where the applicant was invited to show cause why her appeal should not be summarily dismissed – Where the primary judge dismissed the applicant’s application seeking to consolidate her industrial cause with the matrimonial cause – Where the applicant could not demonstrate she would suffer substantial injustice if leave to appeal was refused – Where the statutory causes of action are distinct – Consideration of issue estoppel – Appeal summarily dismissed – No order as to costs.  

Legislation:

Fair Work Act 2009 (Cth)

Family Law Act 1975 (Cth) Pt VIII

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 46

Cases cited:

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39

Blair v Curran (1939) 62 CLR 464; [1939] HCA 23

Bloch v Bloch (1981) 180 CLR 390; [1981] HCA 56

Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28

Hogan v Australian Crime Commission (2010) 240 CLR 651; [2010] HCA 21

Jackson v Goldsmith (1950) 81 CLR 446; [1950] HCA 22

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28

Number of paragraphs:

16

Date of hearing:

20 March 2025

Place:

Sydney (via video link)

Counsel for the Applicant:

Mr Chisholm

Solicitor for the Applicant:

Destra Law

The Respondent:

Litigant in person

ORDERS

NAA 105 of 2025
BRC 7395 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS DIMOV

Applicant

AND:

MR METZGER

Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	20 MARCH 2025

THE COURT ORDERS THAT:

1.The Notice of Appeal filed on 18 March 2025 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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Dimov & Metzger has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. These reasons explain the summary dismissal of an application for leave to appeal from procedural orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 21 February 2025.

   Background

2. The applicant and the respondent are engaged in pending property settlement proceedings before the Federal Circuit and Family Court of Australia (Division 2) under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”), commenced by the respondent in 2022.

3. In 2023, the applicant commenced separate proceedings under the Fair Work Act 2009 (Cth) (“the Fair Work Act”) in the Federal Circuit and Family Court of Australia (Division 2), the respondents to which proceedings are the respondent and a corporation of which he is the sole director and shareholder (“the corporation”). It is apparently uncontroversial that the applicant was formerly employed by the corporation. She alleges, but the respondent denies, she was not paid for the work she performed between early 2019 and mid 2021. The applicant alleges the respondent was complicit in the corporation’s breach of statutory duty. Her industrial cause seeks remedial orders for compensation and civil penalties against the respondent and the corporation.

4. By an Amended Application in a Proceeding filed by the applicant on 19 February 2025 in the matrimonial cause, she sought an order consolidating the industrial cause with the matrimonial cause. The application was dismissed by the primary judge on 21 February 2025 and costs were reserved. Relevantly, these two orders were made:

   2.The [applicant’s] Application in a Proceeding to consolidate [the industrial cause] and [the matrimonial cause] is dismissed.

   …

   6.The [respondent’s] costs of the Application in a Proceeding are reserved to the trial.

5. The applicant filed a Notice of Appeal on 18 March 2025, seeking leave to appeal from those two orders.

6. The application for leave to appeal was promptly listed for hearing today to afford the applicant the chance to submit why the application for leave to appeal should not be summarily dismissed pursuant to s 46(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth). The applicant’s submissions failed.

   Disposition

7. Order 6, which simply reserves the respondent’s costs of the failed consolidation application, is not a “judgment” from which any appeal capably lies. It is simply a procedural order which defers consideration of the respondent’s application, and the applicant’s denial of liability, for costs. The applicant conceded the intended appeal is not directed to that order. The application for leave to appeal from the order is summarily dismissed.

8. Order 2 is only an order which governs practice and procedure. Arguably, nor is it a “judgment” from which an appeal competently lies because it is not determinative of any right enjoyed, or liability borne, by either party (Commonwealth v Mullane (1961) 106 CLR 166 at 169). The decision only governs the way in which the Court chooses to dispose of its business. The applicant may now believe it is more expedient for the Court to hear the matrimonial and industrial causes together, but the primary judge’s contrary decision does not adversely impinge upon her rights in either cause by the pronouncement of any judgment.

9. Supposing for the moment that Order 2 was wrongly made (as the applicant alleges) and that the order does constitute a “judgment” from which an appeal lies, subject to the grant of leave to bring it, the applicant must still satisfy the test for the grant of leave (Medlow & Medlow (2016) FLC 93-692 at [44]–[57]).

10. One limb of the conjunctive test for the grant of leave to appeal which the applicant must satisfy is the demonstration she will suffer “substantial injustice” if leave is refused. This she could not do, particularly in light of authoritative statements that appellate intervention in matters of only practice and procedure should be very cautious when no question of general principle is at stake (Hogan v Australian Crime Commission (2010) 240 CLR 651 at [34]; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; Bloch v Bloch (1981) 180 CLR 390 at 395).

11. The applicant alleged in her Notice of Appeal that substantial injustice would result if leave to appeal is denied for three reasons: first, the risk of conflicting judgments in the causes; secondly, an apprehension of the primary judge’s bias if the matrimonial cause proceeds to hearing before her Honour; and thirdly, the time, cost and inconvenience of separate trials.

12. The applicant is still free to defend her position in the matrimonial cause, which is listed for hearing over two days in May 2025. The proposed consolidation of the industrial cause with the matrimonial cause would probably require the current hearing dates for the matrimonial cause to be vacated and lost, as the combined hearing would likely take longer. The loss of the current hearing dates in the matrimonial cause would certainly be prejudicial to the respondent. The applicant chose to separately prosecute the industrial cause and she is free to press ahead with it. The “time, cost and inconvenience” of separate trials, of which the applicant complains, must have been contemplated when she chose to separately institute the industrial cause. Separate trials cannot now be fairly regarded as a substantial injustice to her.

13. The applicant’s assertion of the risk of “conflicting judgments” cannot be correct. There will be no conflicting “judgments” because the statutory causes of action are quite distinct. There is no scope for the doctrines of res judicata or “claim estoppel” to apply but, bearing in mind the applicant and the respondent are parties to both causes of action, any common controversial “issues” which are determined by findings made between them in the cause heard first will bind them in the cause heard afterwards, due to the doctrine of “issue estoppel” (Blair v Curran (1939) 62 CLR 464 at 531; Jackson v Goldsmith (1950) 81 CLR 446 at 466; Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507 at [21]–[23]).

14. The applicant’s sundry complaint of an apprehension of judicial bias is rejected as being a reason for granting leave to appeal. No disqualification application was made to the primary judge before the decision was pronounced on 21 February 2025 and no such application has apparently since been made.

15. The application for leave to appeal from Order 2 has no reasonable prospect of success on account of the test in Medlow & Medlow not being met (s 46(2)), even though it might not be regarded as being hopeless or bound to fail (s 46(3)). It is therefore summarily dismissed, in consequence of which the Notice of Appeal filed on 18 March 2025 is dismissed.

16. No question of costs arises. The respondent was self-represented.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       21 March 2025