Gambetto & Farrelli (No 5)
[2023] FedCFamC1A 43
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Gambetto & Farrelli (No 5) [2023] FedCFamC1A 43
Appeal from: Gambetto & Farrelli (No 7) [2022] FedCFamC2F 1219 Appeal number(s): NAA 223 of 2022 File number(s): SYC 4559 of 2021 Judgment of: ALDRIDGE J Date of judgment: 31 March 2023 Catchwords: FAMILY LAW – APPEAL – Appeal from a costs order relating to many applications filed by the appellant and the respondent – Where in respect of one application the primary judge made an order purporting to dismiss the appellant’s Application in a Proceeding – Where the dismissal of that application was subject to an appeal – Where that appeal court found that the dismissal was an inadvertent error and accordingly the order dismissing it was set aside – Findings of abuse of process – Error established – Appeal allowed – Costs order set aside – Re-exercise of the discretion – Costs order made against the appellant in a reduced sum as it also related to applications that were not the subject of the appeal. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.31, 1.33, 1.34 Cases cited: Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30
Gambetto & Farrelli [2022] FedCFamC1A 196
Gambetto & Farrelli (No 4) [2022] FedCFamC2F 942
Gambetto & Farrelli (No 5) [2022] FedCFamC2F 918
House v The King (1936) 55 CLR 499; [1936] HCA 40
Number of paragraphs: 31 Date of hearing: 17 February 2023 Place: Sydney The Appellant: Litigant in person The Respondent: Filed Submitting Notice on 10 November 2022 The Independent Children’s Lawyer: Filed Submitting Notice on 28 October 2022 ORDERS
NAA 223 of 2022
SYC 4559 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR GAMBETTO
Appellant
AND: MS FARRELLI
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
ALDRIDGE J
DATE OF ORDER:
31 march 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 3 February 2023 is dismissed.
2.The appeal against Order 1 made on 13 September 2022 is allowed.
3.Order 1 made on 13 September 2022 is set aside.
4.Within 60 days of the date of these orders, the appellant is to pay the respondent’s costs of and incidental to the:
(a)Application for Review filed by the respondent on 9 May 2022;
(b)Application for Review filed by the appellant on 10 May 2022;
(c)Application in a Proceeding filed by the appellant on 12 May 2022 and the
(d)Application for Review filed by the appellant on 15 June 2022.
fixed in the sum of $2,749.
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 Gambetto & Farrelli (No 5) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
Mr Gambetto (“the appellant”) and Ms Farrelli (“the respondent”) have been engaged in various proceedings in the Federal Circuit and Family Court of Australia (Division 2) for some time. The proceedings are marked by the many Applications in a Proceeding which have been filed by both parties but by the appellant in particular.
BACKGROUND
On 13 September 2022, a judge of that Court made the following orders:
1.By 4:00 pm on 9 November 2022 the [appellant] pay the [respondent’s] costs of and incidental to the:
(a) Application for Review filed by the [respondent] on 9 May 2022;
(b) Application for Review filed by the [appellant] on 10 May 2022;
(c) Application in a Proceeding filed by the [appellant] on 12 May 2022;
(d) Application in a Proceeding filed by the [appellant] on 23 May 2022; and the
(e) Application for Review filed by the [appellant] on 15 June 2022.
fixed in the sum of $4,320.00.
2. The application for costs arising from the Application for Review filed by the [appellant] on 23 May 2022 is dismissed.
The appellant has appealed both orders.
Both the respondent and the Independent Children’s Lawyer (who also appeared on the various applications before the primary judge) filed submitting appearances and did not appear at the hearing of the appeal. Nonetheless, it remains the appellant’s obligation to demonstrate error on the part of the primary judge.
The appellant relied on the following grounds of appeal:
1.Primary Judge failed to exercise implied jurisdiction of the court over its officers and allowed the court’s authority to be undermined.
2.Primary Judge failed to exercise implied powers of the court over its officers and did not provide a deterrent for those officers from future abuse of the court processes.
3.Primary Judge exercised actual bias against self-represented party by applying a higher standard of accountability and compliance with the Rules to the self-represented applicant than to the respondent represented by a solicitor and a counsel.
4. Primary Judge failed to invoke the law of equity in her judgement.
5.Primary Judge, by the implication of her orders and reasons, authorized the officers of the court and the respondent to not comply with the disclosure obligations bestowed on them by the Family Law in this matter.
(As per the original)
Leaving aside the material described as “background” by the appellant, his Summary of Argument dealt with the asserted errors of the primary judge principally in the following three paragraphs:
The primary judge reduced the cost application of the respondent however failed to deliver a fair judgement, failed to exercise her jurisdiction over the officers of the court and failed to make orders serving as a deterrent from the conduct exhibited by the respondent and her legal representatives, i.e., perverting the course of justice.
The primary judge also included costs of the hearing on 7 July 2022, clearly showing that she did not understand her initial error, that she still erroneously considered me to have abused the process, and that she was not notified of the error by the other side, who can be deemed to have wilfully concealed the error from the primary judge in their attempt to pervert the course of justice.
While the primary judge erroneously was holding me accountable under
Rule 2.24 (1)(e) the primary judge failed to hold the respondent and her legal team accountable under any of the rules including Rule 2.23 (4)(5).(Appellant’s Summary of Argument filed on 14 December 2022, p.3)
As can be seen, many of the grounds focus on the conduct of the respondent and her lawyers.
The appeal will be allowed because there was, in fact, no application before the Court on 7 July 2022, as appears from the reasons given on the appeal taken by the appellant against the order made on that day dismissing the application. His appeal was dismissed, but the order made on 7 July 2022 was set aside (Gambetto & Farrelli [2022] FedCFamC1A 196) because there was in fact no application filed on 23 May 2022 returnable on 7 July 2022. The appellant had attempted to file such an application on that date, but the registrar refused to file it. The Court considered that the record should be corrected by setting aside the order for the dismissal of the application.
In do so, Austin J considered that the primary judge inadvertently thought that the application was, in fact, before the Court.
In reasons given on 7 July 2022, her Honour found that the Application in a Proceeding that she considered had been filed on 23 May 2022 was an abuse of process because it was in fact an application for contempt, which had already been rejected for filing and in which the appellant simply attached it to an Application in a Proceeding coversheet (Gambetto & Farrelli (No 4) [2022] FedCFamC2F 942).
Thus, if regard was had to the merits of the application, it can be easily understood why the primary judge thought the application should be dismissed and why, subsequently, the application for review in relation to the refusal to file it was also unsuccessful. Nonetheless, the fact remains that the application was not listed on that date, did not exist and should not have been the subject of proceedings on that day.
Unfortunately, no one, including the respondent and the Independent Children’s Lawyer, raised this point with the primary judge, and it did not become apparent until after the delivery of judgment on 13 September 2022, well after the costs order had been made.
It is apparent from the schedule contained at [36] that the costs of the application thought to be before the Court on 7 July 2022 were included in the sum of costs awarded by the primary judge, including a hearing fee of $1,178 for that day. As it has now emerged that there was actually no application before the Court on that day it is difficult to see how the finding that the appellant’s application “dismissed” on 7 July 2022 could be taken into account as being unsuccessful (as it was at [28]).
THE APPEAL
This is an appeal by way of re-hearing which means that the court applies the facts and law as they stand, as established, at the time of the hearing of the appeal. Thus the decision of Austin J must be taken into account. It follows that, inadvertently, the primary judge has taken an irrelevant matter into account (House v The King (1936) 55 CLR 499 at 505) and the appeal must be allowed.
The following applications were listed before the Court on 8 July 2022:
·Application for Review filed by the respondent – 9 May 2022;
·Application for Review filed by the appellant – 10 May 2022;
·Application in a Proceeding filed by the appellant – 12 May 2022 and
·Application for Review filed by the appellant – 15 June 2022.
Reasons in relation to those applications were delivered on 15 July 2022. The respondent was successful in her Application for Review, but the appellant was unsuccessful in all but one of the applications filed by him. In the reasons (Gambetto & Farrelli (No 5) [2022] FedCFamC2F 918) the primary judge found that the subpoenas which the appellant sought to have issued, but which were rejected by the registrar, were variously oppressive, would cast a serious unfair and unreasonable burden on the recipient, were so broad so as to be oppressive and generally were an abuse of process (at [41]–[44], [48]).
The two applications sought to be filed on 23 May 2022 were also found to be an abuse of process (at [65]).
These reasons were incorporated into the reasons the subject of the appeal (at [14]).
The appellant makes much of what occurred on 6 July 2022, when according to him, the primary judge pre-emptively listed the application we now know to be a nullity on 7 July 2022. The appellant also says that the respondent’s lawyers filed a response to his applications late on 7 July 2022, giving rise to an abuse of process.
He then proceeded to assert that the respondent’s counsel and solicitors capitalised on that breach by failing to inform the Court of the error in relation to the listing of the matter on 7 July 2022.
The appellant makes a number of allegations against the lawyers and the respondent in relation to the schedule of costs and the Financial Statement which may be summarised in the following sentences from his Summary of Argument (page 3):
… Amongst many irregularities raised above, I also raised issues of clear overcharging and fictitious charges by the respondent’s legal representatives as well multiple breaches of the rules by the respondent and her legal team.
(Appellant’s Summary of Argument filed on 14 December 2022, p.3)
In her application for costs, the respondent sought payment of $61,424.70, being the costs of a number of applications on an indemnity basis. That application was supported by a Financial Statement sworn by the respondent.
As is obvious, the respondent only received and recovered a fraction of the costs she sought. Indeed in assessing the costs, her Honour had regard to the scale of costs provided by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”) and not the claim by the respondent. Thus, the allegation of overcharging is not relevant to the result.
Finally, whilst the appellant has his own characterisation of the conduct of the respondent and her lawyers, there is no evidence before me that indicates any of them were in breach of their obligations to the Court. The Rules are not absolute in their operation, see rr 1.31, 1.33 and 1.34.
The primary judge found that the subpoenas sought to be issued by the appellant and the Application in a Proceeding he sought to be filed were abuse of process. The appellant has addressed no submissions to me as to why those findings were erroneous. There is no apparent basis for thinking that the finding is wrong. It is for the appellant to demonstrate error (see Bahonko v Sterjov (2008) 166 FCR 415 at [3]).
CONCLUSION
Apart from the issue of 7 July 2022, no error has been established.
It follows however, that the orders must be set aside.
In the event the appeal was successful, the appellant relied on his Application in an Appeal on 3 February 2023 to adduce further evidence, which was an affidavit sworn by him on the same day listing out court events that he sought the appeal court take into account.
The appellant referred to the respondent being wholly unsuccessful in a Notice of Objection and at an interim hearing, as well as withdrawing a contravention application previously filed. He states that this shows that “the parties cause at least the same level of litigation in the overall matter” and therefore costs should be determined at the final hearing (Appellant’s affidavit filed on 3 February 2023, paragraph 9).
However these events and applications are not in any way related to the current application before the Court and ignores the findings of the primary judge regarding abuse of process.
On the re-exercise of the discretion, I would exclude the costs of 7 July 2022 from the costs order. Given the findings of abuse of process as to the other applications, which stand, it is just in all of the circumstances that the appellant pay the respondent the costs of the applications listed on 8 July 2022. Using the figures relied upon by the primary judge, I will reduce the amount in Item 3 by one fifth so as to exclude the Application in a Proceeding filed on 23 May 2022 and in Item 13, exclude the daily hearing fee for 7 July 2022. There will therefore be an order that the appellant pay the respondent’s costs of the four applications fixed in the sum of $2,749.
COSTS
In the event the appeal was allowed, the appellant sought costs to cover his application fee and any transcripts. There was no transcript obtained in this appeal and, as I have said above, given the findings of abuse of process, there will be no order as to costs.
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 31 March 2023
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