Garston and Yeo

[2019] FamCAFC 56

FAMILY COURT OF AUSTRALIA

GARSTON & YEO [2019] FamCAFC 56

FAMILY LAW – APPLICATION IN AN APPEAL – EXPEDITION – Expedition of the appeal sought on the basis that the hearing of the appeal will be short and that the appeal has strong prospects of success – Where those considerations do not justify prioritising this appeal over others – Application dismissed – Applicant ordered to pay the respondent’s costs of the application.

Family Law Rules 2004 (Cth) r 12.10A

APPLICANT: Mr Garston

RESPONDENT: Mr Yeo

FILE NUMBER: SYC 6928 of 2018

APPEAL NUMBER: EA 27 of 2019

DATE DELIVERED: 28 March 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 28 March 2019

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE: 25 February 2019

LOWER COURT MNC: [2019] FCCA 745

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Cummings SC

SOLICITOR FOR THE APPLICANT: Tiyce & Lawyers

COUNSEL FOR THE RESPONDENT:	Ms Christie SC
SOLICITOR FOR THE RESPONDENT:	Sydney Law Group Pty Ltd

Orders

1. The Application in an Appeal filed on 19 March 2019 be dismissed.

2. The Applicant pay the Respondent’s costs of this Application fixed in the amount of $1,265.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Garston & Yeo has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 27 of 2019
File Number: SYC 6928 of 2018

Mr Garston

Applicant

And

Mr Yeo

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Application for expedition

1. By an Application in an Appeal filed on 19 March 2019, Mr Garston (“the applicant”) seeks expedition of his appeal against orders made by a judge of the Federal Circuit Court of Australia on 25 February 2019.  On that date, relevantly, the applicant was ordered to pay Mr Yeo (“the respondent”) the sum of $1,000 per week as interim spousal maintenance.

2. Expedition is sought on the basis that the appeal will be short, in that it will only take two hours to argue because the judgment appealed from, the material to be relied upon and the argument in support of the appeal will all be brief and that the appeal has strong prospects of success.

3. Leave to appeal is required, which will involve a consideration of whether the decision is attended by sufficient doubt so as to warrant reconsideration by the Full Court and whether substantial injustice would result if leave was not granted (Medlow & Medlow (2016) FLC 93-692 at [57]).

4. The further argument that the order made by the primary judge worked a serious injustice upon the applicant loses much of its force when his investments of $15,500,000 are taken into account.  Nonetheless, if the order was made in error, it should be set aside.

5. Whilst r 12.10A of the Family Law Rules 2004 (Cth), which does not directly apply to appeals, conveniently lists relevant matters to be taken into account in considering expedition applications, the ultimate task for the Court is to decide whether the appeal the subject of the application should be heard before and in priority to other appeals which have already been filed and await hearing.

6. I do not consider that the fact that an appeal is “short” or is, in the opinion or submission of the applicant’s legal representatives, “strong”, either generally or in the particular circumstances of this case, provides a sufficient justification for placing the hearing of this appeal ahead of the hearing of other appeals.

7. The application is dismissed.

Costs

1. Costs are sought by the respondent in the sum of $1,265.  As there is no effective opposition to the payment of that sum, there will be an order that the applicant pay the respondent’s costs fixed in the sum of $1,265.

I certify that the preceding eight (8) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Aldridge delivered on 28 March 2019.

Associate: 

Date:  2 April 2019