Ebadi & Heidari

[2023] FedCFamC1A 172

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Ebadi & Heidari [2023] FedCFamC1A 172

Appeals from:

Orders dated 13 July 2023

Orders dated 3 August 2023

Appeal numbers:

NAA 210 of 2023
NAA 213 of 2023

File number:

PTW 2596 of 2020

Judgment of:

AUSTIN J

Date of judgment:

11 October 2023

Catchwords:

FAMILY LAW – APPEAL – Practice and procedure – Where the wife filed two applications for leave to appeal – Where the proposed appeals were listed to afford the wife the opportunity to be heard about why they should not be summarily dismissed for lack of any reasonable prospects of success – Where the first proposed appeal lies from orders dismissing the wife’s application for the discharge of the single expert – Where appeals only lie from judgments – Where the dismissal order did not determine any legal right enjoyed by the wife – Where the second proposed appeal lies from orders directing the parties to pay any outstanding fees due to the single expert – Where the proposed appeal is futile – Where discharge of the order would not relieve the wife of the burden of her share of the single expert’s fees – Applications dismissed – Where the parties are self-represented – No order as to costs.

Legislation:

Family Law Act 1975 (Cth) Pt VIII

Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 32, 36, 44, 46, 56, 76

Federal Court of Australia Act 1976 (Cth) s 23

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.09

Family Court Rules 2021 (WA) rr 272, 294, 297

Cases cited:

AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26

Batistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256; [2006] HCA 27

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

Faldyn & Badenoch [2022] FedCFamC1A 170

Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22

Kassam v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299

Long v Minister for Immigration and Multicultural & Indigenous Affairs [2002] FCAFC 438

Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30

R v Carroll (2002) 213 CLR 635; [2002] HCA 55

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

Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34

Yule v Junek (1978) 139 CLR 1; [1978] HCA 4

Number of paragraphs:

29

Date of hearing:

11 October 2023

Place:

Newcastle (via video link)

The Applicant:

Litigant in person

The Respondent:

Litigant in person

ORDERS

NAA 210 of 2023
NAA 213 of 2023
PTW 2596 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS EBADI

Applicant

AND:

MR HEIDARI

Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	11 OCTOBER 2023

THE COURT ORDERS THAT:

1.The application for leave to appeal in Appeal No. NAA 210/23 is dismissed.

2.The application for leave to appeal in Appeal No. NAA 213/23 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 Ebadi & Heidari has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. These two appeals are brought by the wife, subject to the grant of leave to do so, from some interlocutory orders made by a judge of the Family Court of Western Australia in proceedings still being contested between the parties in respect of their property under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”).

2. The orders which are the subject of the two proposed appeals were respectively pronounced on 13 July 2023 and 3 August 2023. The first order relevantly dismissed the wife’s application to discharge a single expert witness (“the single expert”). The second order directed the parties to pay any outstanding fees due to the single expert.

3. The Notices of Appeal were listed before the Court to afford the wife the opportunity to make submissions as to why they should not be summarily dismissed for lack of any reasonable prospects of success. She filed written submissions for that purpose and made supplementary oral submissions. For the following reasons, the wife did not discharge the onus and so the applications for leave to appeal are dismissed.

   Background

4. The parties separated in 2017, spawning litigation between them in both Country A and Western Australia with respect to the division of their property interests.

5. In the Australian proceedings, the parties agreed it was necessary to appoint a single expert to give expert evidence “as to relevant matters arising under [Country A] law”, but were unable to agree upon the person who should be appointed for that purpose. On 14 July 2022, the primary judge made orders appointing the single expert nominated by the wife. On 27 October 2022, the primary judge made further orders directing the parties to instruct the single expert in specific terms. They did so and, subsequently, the single expert produced his report.

6. In February 2023, the wife filed an application seeking orders that the single expert report not be received in evidence (and inferentially the discharge of the single expert) and, additionally, seeking permission to tender an expert report procured from another unidentified expert witness (presumably one chosen by her). The husband opposed the wife’s application, but consented to her having more time within which to pose clarifying questions to the single expert. By orders made on 5 April 2023, the primary judge dismissed the wife’s applications, but granted her more time within which to pose questions to the single expert.

7. Then, between early June 2023 and early July 2023, the wife filed more applications seeking exactly the same relief as before – being the discharge of the single expert and permission to call evidence from one or more experts instructed by her, presumably either as a substitute single expert or as an adversarial expert.

8. By orders made on 13 July 2023, the primary judge granted the wife permission to adduce adversarial expert evidence (Order 2), but otherwise dismissed her applications (Orders 10 and 11). The effect of the dismissal orders was to refuse the wife’s application to discharge the single expert (and to incidentally reject his expert evidence-in-chief).

9. The wife’s first appeal, subject to the grant of leave to bring it, lies from Order 11.

10. Not long afterwards, on 3 August 2023, the primary judge made a series of procedural orders governing the imminent conclave of the single expert and the adversarial expert in readiness for the hearing, fixed to start in January 2024, which conclave is expected by r 297 of the Family Court Rules 2021 (WA) (“the Rules”). The primary judge incidentally ordered that the parties must pay any outstanding fees due to the single expert (Order 1).

11. The wife’s second appeal, again subject to the grant of leave to bring it, lies from Order 1.

    The first appeal

12. Appeals only lie from “judgments” (s 26(1) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”)).

13. The subject dismissal order (Order 11) was not an appealable “judgment” because the decision it embodied – being the refusal of the wife’s application for the discharge of the single expert (and the ancillary rejection of the single expert’s evidence as being inadmissible) – did not determine any legal right enjoyed by her.

14. Similar circumstances were encountered in Faldyn & Badenoch [2022] FedCFamC1A 170, which concerned an appeal from an order made by a judge to appoint a particular single expert, to whom the appellant objected. The appeal was summarily dismissed because the order was not a “judgment” from which an appeal would competently lie.

15. As was said then:

    17.In this instance, the primary judge merely made an interlocutory ruling on which one of three eligible psychiatrists would be appointed as the single expert. The ruling did not determine any legal right which one party could exert against the other. Neither party had the “right” to the appointment of a single expert, but once accepted a single expert should be appointed, neither had the “right” to the appointment of their preferred candidate nor the “right” to veto the other’s choice or the expert eventually selected. The decision was merely one about how the litigation would best be conducted to facilitate adjudication of the parties’ rights under Pt VII of the Act. The decision is not a “judgment” from which an appeal lies.

    18.While the [appellant] may be dissatisfied with the psychiatrist selected by the primary judge for the role of single expert, he is not without redress. For example, if dissatisfied with the content of the single expert report subsequently furnished, he may confer with or pose questions to the single expert in advance of trial (Div 7.1.6 of the Rules). He could also seek the appointment of an adversarial expert, if certain conditions are met (r 7.08 of the Rules). At trial, he may test the validity of the single expert’s opinion evidence via cross-examination.

    19.It remains possible the [appellant] will eventually be satisfied with the opinion evidence given by the single expert, but assuming he is not, he may successfully persuade the primary judge that such evidence should be given little or no weight. Any evidence ultimately given by the single expert is not binding upon the primary judge.

16. Those observations apply just as conclusively in this instance. The primary judge appointed a single expert, as both parties wanted. It happened to be the expert for whom the wife advocated. It is unnecessary to say anything more about the paradox of the wife applying to discharge the single expert whom she promoted. The primary judge’s procedural ruling to retain the single expert originally appointed does not transgress any “right” which the wife can now assert and vindicate by an appeal. The decisions to retain the single expert and to admit his expert evidence-in-chief are procedural and evidentiary rulings, which are not appealable judgments (Yule v Junek (1978) 139 CLR 1; Commonwealth v Mullane (1961) 106 CLR 166).

17. When no appeal validly lies, the grounds of the intended appeal are irrelevant. The application for leave to appeal should be summarily dismissed.

18. As was stated in Faldyn & Badenoch, the wife may challenge the single expert at the trial in cross-examination about the reliability of his expert opinion evidence and make submissions to the primary judge about why the expert opinion evidence should be rejected or given little probative weight. Any alleged error by the primary judge in the treatment of the single expert’s evidence, in so far as it contributes to an alleged error in the final judgment, is liable to be challenged in an appeal brought from the orders determining the cause (s 36(5) of the FCFCA Act; Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 482–484 and 494–497).

    The second appeal

19. Subject to the grant of leave to appeal, which the wife concedes she must obtain, this appeal lies only from an order directing the parties to pay any outstanding fees due to the single expert.

20. The proposed appeal is futile because, supposing the order could be vitiated in any of the ways pleaded by the wife’s intended grounds of appeal, the discharge of the order would not relieve the wife of the burden of her share of the single expert’s fees.  That is so for two reasons.

21. First, the Rules impose upon the parties the joint responsibility of paying the single expert fees, which obligation under the Rules will continue to subsist regardless of the discharge of the appealed order. The parties must bear the single expert’s fees in equal shares (r 272(1)), though the party who requires more work of the single expert through a conference or further interrogation bears the cost of it (r 294).

22. Secondly, when the single expert was initially appointed on 14 July 2022, an ancillary order was made fixing the parties with equal liability for his fees (Order 2). So even if the appealed order made in August 2023 is discharged, the wife’s liability remains under the pre-existing operable order.

23. There is no jurisdiction to entertain an appeal when it is entirely moot (AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26 (“AZC20”)), though the issue of jurisdiction here is not so clear-cut because the appealed order is still operable, whereas in AZC20 the appealed order had been overtaken by another.

24. Nonetheless, even if jurisdiction still exists here, the futility of the appeal lends itself to an order which permanently stays its prosecution (Kassam v Hazzard (2021) 106 NSWLR 520 at [27]; Long v Minister for Immigration and Multicultural & Indigenous Affairs [2002] FCAFC 438 at [16]). It is accepted the Federal Court has statutory power under s 23 of the Federal Court of Australia Act 1976 (Cth) to achieve that outcome in moot appeals (AZC20 at [101]) and this court has the counterpart statutory power (s 44 of the FCFCA Act).

25. As an alternative to the permanent stay of the appeal, it may be dismissed as being an abuse of process, the power for which order derives from several sources, being: statute (s 69(4)(a) of the FCFCA Act), the court rules (ss 56(1)(b) and 76 of the FCFCA Act; r 10.09(1)(c) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), and the common law (Williams v Spautz (1992) 174 CLR 509 at 518).

26. The circumstances in which curial proceedings may amount to an abuse of process cannot be exhaustively defined and minds may legitimately differ as to whether proceedings do actually constitute such an abuse (Batistatos v Roads & Traffic Authority (NSW) (2006) 226 CLR 256 at 265; R v Carroll (2002) 213 CLR 635 at 657). However, the principle certainly does extend to cover situations in which the use of the court's procedures by one party would be unjustifiably oppressive to the other party (Tomlinson v Ramsay Food Processing Pty Ltd (2015) 256 CLR 507 at [25]). It would be unjustifiably oppressive to force the husband to defend the appeal designed to relieve the wife of any responsibility for the single expert’s fees when, even if allowed, there would be no change to the parties’ equal liability for such fees.

27. The summary dismissal of the wife’s application for leave to appeal does not deprive her of the remedy she seeks. She could still apply to the primary judge for relief from the Rules (r 12) and to vary the original order made in respect of the single expert’s fees on 14 July 2022, thereby relieving her of the burden to contribute towards payment of the residual single expert’s fees, but that would be an application made within the original jurisdiction of the Court which has not yet been made. So far, the primary judge has only made an interlocutory order which endorses a duty imposed by the Rules and replicates a pre-existing order. No remedial order relieving the wife of that burden could now be made in this appellate proceeding because the demonstration of error is integral to any appellate intervention (Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [30]–[31]).

    Disposition

28. The application for leave to appeal in each instance is dismissed, which orders may be made by a single judge exercising appellate jurisdiction (ss 32(3)(b), 32(5) and 46(2) of the FCFCA Act).

29. Both parties were self-represented so there is no order as to costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       13 October 2023