Genesalio & Genesalio (No 2)

[2023] FedCFamC1A 197

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Genesalio & Genesalio (No 2) [2023] FedCFamC1A 197

Appeal from:

Genesalio & Genesalio (No 2) [2023] FedCFamC1F 611

Appeal number:

NAA 223 of 2023

File number:

MLC 7657 of 2018

Judgment of:

AUSTIN J

Date of judgment:

15 November 2023

Catchwords:

FAMILY LAW – APPLICATION IN AN APPEAL – Where the applicant seeks to vacate the hearing date of the appeal and extend time to comply with the procedural orders – Where this is the second time the applicant has applied for an adjournment of the appeal hearing – Where an adjournment of the appeal hearing has previously been granted – Where the applicant adduces evidence in support of his application comprising a medical certificate and two medical reports – Where the medical certificate does not say how the applicant’s medical condition hampers his participation in the appeal proceeding – Where the probative value of the medical certificate is vitiated – Where the medical reports lack detail about the applicant’s diagnosis and symptoms – Where the medical reports carry no evidentiary weight – Where the applicant’s evidence is not persuasive enough to warrant another adjournment – Extension granted to file the relevant documents in the appeal – Application otherwise dismissed.  

Cases cited:

Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21

Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75

Number of paragraphs:

14

Date of hearing:

15 November 2023

Place:

Newcastle (via Microsoft Teams)

The Applicant:

Litigant in person

Solicitor for the First Respondent:

Mazzeo Lawyers

The Second Respondent:

Did not participate

ORDERS

NAA 223 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:	14 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The time for the applicant’s compliance with Order 9 made by the appeal registrar on 4 September 2023 is extended until Friday 17 November 2023.

2.The time for the respondents’ compliance with Order 10 made by the appeal registrar on 4 September 2023 is extended until Friday 24 November 2023.

3.The applicant is excused from attendance at the appeal hearing on 1 December 2023 if he does not wish to appear electronically.

4.Otherwise, the Application in an Appeal filed on 10 November 2023 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 Genesalio & Genesalio(No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. This is the second time the applicant has applied for an adjournment of the appeal hearing. The first application was granted, but this one is not.

2. On 6 October 2023, the applicant sought an adjournment of the appeal hearing, which was granted on 13 October 2023. The appeal hearing fixed for 1 November 2023 was vacated and pushed back to 1 December 2023. Time was also extended for the parties to file their Summaries of Argument and List of Authorities. For the applicant, time was extended until 10 November 2023.

3. On 10 November 2023, the applicant applied for this relief by an Application in an Appeal:

   1.Vacate the hearing of Notice of Appeal NAA223 of 2023 listed on 1 December 2023

   2.Relist the Hearing of Notice Appeal NAA223 of 2023 on a date at the discretion of the Court

   3.To extend time for the Appellant to file and serve a summary of arguments and list of authorities to a date after the 5 December 2023

   4.To extend time for the Respondents to file and serve a summary of arguments & list of authorities at the discretion of the Court …

   (As per the original)

4. The application was supported by the applicant’s affidavit, filed on the same date. In effect, the applicant deposed to the continuation of his ill health, the symptoms of which justified the last adjournment for a period of time which accommodated the then expected duration of the applicant’s illness. The new evidence adduced by the applicant comprises a medical certificate issued on 1 November 2023 and a medical report issued on 9 November 2023.

5. Despite the lateness of its service, the applicant was also permitted to rely upon another affidavit filed on 14 November 2023, which annexes another medical report dated 14 November 2023.

6. However, the medical evidence upon which the applicant relies does not do the work he was hoping.

7. The medical certificate carries no evidentiary weight on the question of the adjournment. It simply certifies the applicant was “unable to work” from 31 October 2023 until 2 November 2023, but its probative value is vitiated because it does not say how the applicant’s medical condition hampers his participation in this appeal proceeding (Luck v Chief Executive Officer of Centrelink [2015] FCAFC 75 at [48]–[50]). Evidently though, the doctor who signed the certificate thought the applicant was fit for work for a full week before his Summary of Argument was due for filing.

8. The first medical report carries no evidentiary weight either. It observes the applicant has “had some health challenges recently” and still has “several outstanding medical issues”, but the lamentable lack of detail about his diagnosis and symptoms renders meaningless the ultimate opinion founded upon such generic observations. For expert opinion evidence to even be admissible, let alone carry any probative weight, the facts and assumptions upon which the opinion are based must be proven and the expert’s reasoning must be transparently exposed (Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588 at [42], [91]–[101], [120]–[124] and [128]–[130]). That is not the case here.

9. Without pausing to comment upon the obvious inconsistency between the medical certificate and the first medical report as to the applicant’s fitness as and from 3 November 2023, the doctor concludes the medical report with this statement:

   I would suggest [the applicant] has been unfit for the purposes of completing [court paperwork] since his admission to hospital on 29/9/2023, and will remain so until approximately 5/12/2023.

10. The medical opinion, such as it is, cannot be accepted at face value anyway because it is demonstrably contradicted by the applicant’s conduct. He has twice proven his fitness to “complete court paperwork” since his discharge from hospital. He did so on 6 October 2023, when he filed his first Application in an Appeal with supporting affidavit. He did so again when he filed this second Application in an Appeal with supporting affidavit on 10 November 2023. The applicant was also well enough to appear electronically at the hearing on 13 October 2023 and again today (15 November 2023).

11. The second medical report is just as enigmatic as the first. It is written by a doctor who confirms his or her collegiality with the doctor who wrote the first medical report and purports to corroborate the first doctor’s opinion. The second report attests to the applicant feeling fatigued over the past month and him taking antibiotics for a bacterial infection. Without any further pertinent discourse, it similarly concludes:

    …I too would suggest that [the applicant] has been unfit to complete required paperwork since his admission to hospital on 29/9/2023, and will remain so until approximately 5/12/2023.

12. The second medical report is therefore beset by the same evidentiary problems which afflict the first medical report.

13. The substantive application for leave to appeal was brought by the applicant some months ago in August 2023 and he should be expected to prosecute it with reasonable efficiency. The original hearing fixed for 1 November 2023 has already been pushed back once to 1 December 2023. The evidence brought by the applicant is not persuasive enough to warrant another adjournment as it does not demonstrate he cannot be ready for the hearing on 1 December 2023. To the extent that the applicant might be inconvenienced by being ready in time, the prejudice to the respondents caused by any further delay in hearing the application for leave to appeal (and, if granted, the appeal) outweighs his inconvenience.

14. However, the application can be partially granted by extending the time for the parties to file their Summaries of Argument and Lists of Authorities by an extra week. The applicant can also be granted the indulgence of being excused from the hearing on 1 December 2023, if he is content to rely upon the Summary of Argument he files.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       15 November 2023