Genesalio & Genesalio

Case •

[2023] FedCFamC1A 109

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Genesalio & Genesalio [2023] FedCFamC1A 109

Appeal from: Genesalio & Genesalio [2023] FedCFamC1F 160
Appeal number: NAA 141 of 2023
File number: MLC 7657 of 2018
Judgment of: AUSTIN J
Date of judgment: 6 July 2023
Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Review of decision – Where the applicant seeks review of the decision of the appeal registrar summarily dismissing the appeal – Where the applicant appeals from orders joining him as a party to the original proceedings between the spouses – Where appeals from orders joining a party to proceedings are prohibited by s 26(2)(b)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) – Where the applicant contends the primary judge fell into jurisdictional error – Where no jurisdictional fact needed to be established as an intrinsic component of the interlocutory decision about joining the applicant to the substantive matrimonial proceeding – Where the appeal has no reasonable prospects of success – Application dismissed – Costs ordered in favour of the respondent on a party/party basis in a fixed amount.
Legislation:

Family Law Act 1975 (Cth) Pt VIII, ss 78, 79, 90AE, 90AF, 117

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

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 14.07

Cases cited:

Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57; [2006] HCA 46

Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194; [2000] HCA 47

Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58

Fox v Percy (2003) 214 CLR 118; [2023] HCA 22

Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9

Hernandez & Cranage (No.2) [2022] FedCFamC1A 103

Hsiao v Fazarri (2020) 270 CLR 588; [2020] HCA 35

Kirk v Industrial Court of NSW (2010) 239 CLR 531; [2010] HCA 1

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

Reg v Ross Jones; Ex parte Beaumont (1979) 141 CLR 504; [1979] HCA 5

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Stanley v DPP (NSW) (2023) 407 ALR 222; [2023] HCA 3
Number of paragraphs: 37
Date of hearing: 6 July 2023
Place: Newcastle (via Microsoft Teams)
Solicitor for the Applicant: Franzese & Associates
Counsel for the First Respondent: Ms Frederico
Solicitor for the First Respondent: Mazzeo Lawyers
The Second Respondent: Did not participate

ORDERS

NAA 141 of 2023
MLC 7657 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR M GENESALIO

Applicant
AND:

MS GENESALIO

First Respondent

MR GENESALIO

Second Respondent

order made by:

AUSTIN J

DATE OF ORDER:

6 July 2023

THE COURT ORDERS THAT:

1.The Application in an Appeal filed on 26 June 2023 is dismissed.

2.The applicant shall pay the first respondent’s party/party costs of and incidental to the review application, fixed in the sum of $3,000.

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 a pseudonym Genesalio & Genesalio has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

  1. On 13 June 2023, in an exercise of delegated power, the appeal registrar summarily dismissed the Notice of Appeal filed on 23 May 2023.

  2. On 26 June 2023, by an Application in an Appeal, the applicant sought review of the appeal registrar’s decision.

  3. For the following reasons, the review application is dismissed and the appeal registrar’s order stands.

    Background

  4. The parties to the appeal proceedings are engaged in ongoing litigation under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) over the adjustment of their property interests.

  5. The former spouses were the respondents to the appeal proceedings and are the respondents to the current application. The applicant is the husband’s brother who, over his objection, was joined by the primary judge as a party to the matrimonial cause.

  6. On 26 April 2023, the primary judge relevantly made orders to:

    (a)join the applicant to the original proceedings (Order 1);

    (b)compel both the husband and the applicant to afford single expert witnesses unfettered access to certain premises to enable their valuation of certain real and personal property (Order 2);

    (c)restrain both the husband and the applicant from interfering with the valuation process (Order 3);

    (d)compel the parties to appoint and instruct single expert witnesses to value those items of property over which they remain in dispute (Orders 4 and 5); and

    (e)compel the parties to bear the cost of any valuation in equal shares (Order 6).

  7. By the Notice of Appeal filed on 23 May 2023, the applicant sought leave to appeal from Orders 1–6 inclusive, though the three proposed grounds of appeal attack only Orders 1 and 2.

  8. The appeal registrar listed the appeal proceedings on 5 June 2023 to afford the applicant the opportunity to be heard about the apparent incompetence of the proposed appeal and why the application for leave to bring it should not be summarily dismissed.

  9. Having heard from the applicant and the respondents, on 13 June 2023, the appeal registrar summarily dismissed the Notice of Appeal. The applicant now reviews that decision, as is his right.

  10. This review is an original hearing as to whether or not the application for leave to appeal should be summarily dismissed (r 14.07(1) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)). Such is the nature of a de novo hearing that it is unnecessary for the applicant to establish the appeal registrar made an error (Fox v Percy (2003) 214 CLR 118 at 124–125; Allesch v Maunz (2000) 203 CLR 172 at 180–181 and 187; Coal & Allied Operations Pty Ltd v AIRC (2000) 203 CLR 194 at 203–204 and 223–224; Harris v Caladine (1991) 172 CLR 84 at 124–125).

  11. The applicant relies upon his corrected affidavit filed on 29 June 2023 to prosecute the review.

    Leave to appeal

  12. The joinder order and the orders which appoint and facilitate the single expert witnesses are plainly procedural and the applicant correctly acknowledges he needs leave to bring the appeal from them. The applicant conceded no complaint about the orders which may be characterised as injunctions can be sustained without showing error in respect of his joinder.

  13. The grant of leave to appeal hinges upon the applicant’s ability to show how the decision which is the subject of the proposed appeal is attended by sufficient doubt to warrant appellate scrutiny and substantial injustice would result if leave were refused, supposing the decision to be wrong (Medlow & Medlow (2016) FLC 93-692 at [44]–[57]).

  14. The applicant cannot fulfil either limb of that test.

    Appealable error

  15. The proposed grounds of appeal do not tend to expose any appealable error.

  16. The first two grounds of appeal attack Order 1. It is alleged the primary judge erred by making that order (Ground 2) and failed to give adequate reasons to explain it (Ground 1).

  17. However, Order 1 did no more than join the applicant as a party to the original proceedings between the spouses. Appeals from orders joining a party to proceedings are prohibited by the terms of s 26(2)(b)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”). That being so, it is immaterial whether the primary judge erred by making the order or by failing to properly explain the decision.

  18. However, the applicant contends the primary judge fell into jurisdictional error by making Order 1 and, since the question of jurisdiction was anterior to the joinder decision made by the primary judge, the appeal is not precluded by s 26(2)(b)(i) of the FCFCA Act. The submission was put in this way:

    4.In making order 1 of the Appealed Orders the primary judge was required to determine the following jurisdictional question (as a step precedent to the exercise of her discretion to join or not to join):-

    (a)That the Appellant is a person whose rights may be directly affected by an issue in the proceeding.

    (b)The Appellant is a necessary party to determine all the issues in dispute in the proceeding.

    5.The trial judge was required to determine the jurisdictional fact/s were in existence prior to making the order for joinder. The determination of the jurisdictional question is a necessary step precedent and confers upon the primary judge the jurisdiction to invoke the power to join or not to join a party.  This decision underpins the order for joinder. The order to join the appellant is an order that needs to be made judicially and in accordance with principles of law, irrespective of whether the power is discretionary. To decide against a principle of law is an error of law.

    …

    7.The determination of the jurisdictional question is a fundamental issue for the exercise of the power to join a party, before the making of the order for joinder which decided the substantive legal rights of the party to be joined, which is a jurisdictional question as to whether this court has jurisdiction over the assets of a third party not being a party to the marriage, and therefore an appealable order. The decision affects the substantive rights of the Appellant who has a right not to be joined to proceedings in circumstances where there is no legal basis for his joinder and results in a substantial injustice.

    8.The appeal relates to the failure by the primary judge to establish the jurisdictional base for a triable cause of action as a step precedent to enliven the power to join or not join a party. The absence of a jurisdictional fact/s in the exercise of powers conferred upon the decision maker is jurisdictional error.

    9.It is important to distinguish the nature of the appeal in that the appeal is not confined to the discretion to join the Second Respondent, the appeal relates to the determination of the jurisdictional question which is a precondition to the exercise of the power to join a party.

    10.The grounds of appeal of the Appellant provide that Order 1 was made beyond jurisdiction and is subject to an error of law and is therefore reviewable.

    …

    15.It is now settled law, a privative clause in the nature of s26, FCFCOA cannot ouster a review of a decision for jurisdictional error, because such a decision is not a decision made under the Act and therefore not afforded protection from review.

    16.A privative clause in the nature of s26(2)(b)(i) FCFCOA can only limit an appeal for non-jurisdictional error. It can never impose a blanket prohibition on all appeals.

    …

    19.It is the Appellants contention the decision made by the primary judge on the 26 April 2023 to join the Second Respondent as a necessary party to determine all matters in the proceeding is subject to jurisdictional error and therefore an appeal on an error of law is competent in this instance, consistent with the Full Court’s decision in Hernandez v Cranage and is not prohibited by s26(2)(b)(i) FCFCOA in accordance with the principles laid down by the High Court in Kirk v Industrial Court of New South Wales and s15A of the Acts Interpretation Act 1901.

    20.It is the Appellants contention that the trial judge erred in law by making Order 1 predicated on the condition precedent as to a triable cause of action to establish jurisdiction for the joinder when there was no proper basis either in fact or at law to make such a finding.

    (Citations omitted)

  19. Such submissions are rejected, even though it is well established that privative provisions like s 26(2)(b)(i) of the FCFCA Act do not operate to preclude appellate correction of jurisdictional error or error on the face of the record (Kirk v Industrial Court of NSW (2010) 239 CLR 531).

  20. Relevantly, jurisdictional error occurs if a court mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in instances where it correctly recognises jurisdiction does exist, but not if it otherwise simply makes evidentiary, legal, factual or discretionary errors (Craig v South Australia (1995) 184 CLR 163 at 177–180). However, it is acknowledged that the edges of such distinctions might sometimes be difficult to discern (Kirk v Industrial Court of NSW at 571–575).

  21. Nonetheless, there was no jurisdictional error in this instance because no jurisdictional fact was, nor needed to be, established as an intrinsic component of the interlocutory decision about whether or not the applicant should be joined to the substantive matrimonial proceeding (Stanley v DPP (NSW) (2023) 407 ALR 222 at [45], [78] and [171]). As the applicant acknowledges, as long as his rights “may” be affected, he could be properly considered a necessary party.

  22. The substantive proceeding pending before the primary judge is plainly within the jurisdiction afforded by Pt VIII of the Act, within which matrimonial cause the wife asserts that she or the husband enjoys existing proprietary interest in certain assets over which the applicant claims exclusive ownership. The primary judge’s first task at trial will be to establish the spouses’ existing legal and equitable property interests (Stanford v Stanford (2012) 247 CLR 108 at [37] and [50]; Hsiao v Fazarri (2020) 270 CLR 588 at [50] and [66]; Reg v Ross Jones; Ex parte Beaumont (1979) 141 CLR 504 at 511 and 517). In accomplishing that task, the primary judge is empowered to declare the nature and extent of the spouses’ existing property rights (s 78) and, in making property settlement orders between the spouses (s 79), the primary judge is empowered to make ancillary orders and injunctions which bind third parties, like the applicant (s 90AE and s 90AF).

  23. In circumstances where the applicant asserts his exclusive proprietary interest in assets which the wife will contend belong, either exclusively or partially, to either she or the husband, the applicant is entitled to be heard in rebuttal of the wife’s case. In fact, he would be denied procedural fairness if not afforded the chance to make good on such rebuttal.

  24. Referring back to the applicant’s written submissions about the alleged anterior “jurisdictional question[s]”, his rights plainly are liable to be affected by the wife’s claims. No error was made about that. The applicant vigorously refutes the wife’s claims, but his joinder as a party gives him standing to be heard against them.

  25. Ground 3 attacks Order 2, which injunction compels the parties to facilitate inspections of assets by the single expert witnesses. The ground asserts the primary judge erred by making the order in so far as it applies to the assets to which the applicant asserts exclusive ownership, as they are irrelevant to the matrimonial cause between the spouses.

  26. This proposed challenge has no reasonable prospects of success because, as was open, the primary judge accepted the wife’s contention that the proprietary interest allegedly enjoyed by her or the husband in such assets is a “triable” issue (at [110]). That was all the primary judge needed to find. At the interlocutory hearing, it was only necessary for the primary judge to be satisfied that the wife’s claims against the applicant had sufficient likelihood of success to justify making the procedural orders she sought (Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57 at [65] and [69]). If the relevant assets are arguably owned (either exclusively or partially) by the husband or the wife, then they are at least capable of forming part of the pool of matrimonial property amenable to division between the spouses by discretionary order made under Pt VIII of the Act.

  27. Whether or not the husband or wife actually do enjoy any legal or equitable proprietary interest in such assets will be determined after all relevant evidence is tested at trial. But once the wife demonstrated a reasonably arguable issue, rationally capable of being determined in her favour against the applicant’s interests, he necessarily became an interested party in the proceedings and the principles of procedural fairness demanded that he have the opportunity to refute the wife’s case at trial.

  28. Correctly, the primary judge said this:

    103.There is a clear factual dispute between the parties as to the circumstances of the acquisition of property by them or entities controlled by them during the course of the relationship. In my view, whether the matters alleged by the wife are proven is a matter for determination following the testing of evidence at a final hearing. I am not in a position to make any findings of fact at this interlocutory hearing. …

    …

    113.As to the outcome of the wife’s claim, that will turn upon the testing of evidence at a final hearing. …

  29. The corollary of the applicant’s submissions is this: he could not be properly joined as a party to the proceedings unless and until the primary judge was satisfied as to the merit of the wife’s claims, because only then is there any trespass upon his rights. That proposition is rejected. The substantive dispute between the parties over legal and equitable ownership of certain property could not be determined by the primary judge at an interlocutory hearing. Her Honour was not obliged to accept the applicant’s unilateral assurance that he alone owns the assets in question, which was the implicit tenor of his position.

  30. The applicant sought to draw support for his position from Hernandez & Cranage (No.2) [2022] FedCFamC1A 103 at [37]–[38], but there was none to be had. In that appeal, the appellant sought to challenge an order refusing her belated application to join a third party to the proceedings below, from which type of decision an appeal is similarly precluded by s 26(2)(b)(i) of the FCFCA Act, as the Full Court said when declaring the appeal to be incompetent (at [35] and [41]). The principles which govern the inability of privative clauses like s 26(2) of the FCFCA Act to preclude the appellate correction of jurisdictional error were neither raised nor discussed in that case.

    Substantial injustice

  31. The applicant has been joined to the original proceedings over his objection, but he does not thereby suffer any substantial injustice because he may choose not to participate in the trial. His status as a party now permits, but does not oblige, him to do so. Procedural fairness only demands that he be given the chance to be heard, not that he actually takes it (Allesch v Maunz at 184–185).

  32. Nor is there any substantial injustice incurred by the applicant in being bound to allow the single expert witnesses unfettered access to contentious real and personal property.

  33. Some inconvenience may be suffered by the applicant in having to contribute equally to the cost of engaging the single expert witnesses, but such inconvenience can be remedied in due course by him seeking a supplementary order compelling the wife to reimburse him for such expenditure in respect of the valuations of those assets in which she ultimately fails to demonstrate any proprietary interest enjoyed by either spouse.

    Disposition

  34. The applicant fails to demonstrate his proposed appeal enjoys any reasonable prospect of success and so his application for leave to appeal should be summarily dismissed, which order may be made by a single judge (ss 32(3)(b), 32(5) and 46(2) of the FCFCA Act).

  1. An order to dismiss the appeal would replicate the order made by the appeal registrar on 13 June 2023, so there is no need to disturb it. It is only now necessary to dismiss the applicant’s Application in an Appeal.

  2. The wife sought her costs of resisting the review application. She sought such costs on an indemnity basis, but alternatively on a party/party basis. The only reason for the applicant to bear costs is that the review application was wholly unsuccessful (s 117(2A)(e)), which factor warrants departure from the usual rule that each party bear his and her own costs (s 117(1)), but is not justification in this instance for indemnity costs.

  3. The wife assessed her party/party costs at $3,000, with which assessment the applicant sensibly took no issue. The applicant should pay costs in that sum.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       6 July 2023

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Re Hillsea Pty Ltd [2019] NSWSC 1152
Mickelberg v The Queen [1989] HCA 35
Fox v Percy [2003] HCA 22