Gin & Hing
[2024] FedCFamC1A 36
•20 March 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Gin & Hing [2024] FedCFamC1A 36
Appeal from: Gin & Hing (No 8) [2023] FedCFamC1F 954 Appeal number: NAA 353 of 2023 File number: MLC 4528 of 2010 Judgment of: ALDRIDGE J Date of judgment: 20 March 2024 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Appellant sought extension of time for filing his Summary of Argument and an Amended Notice of Appeal, the vacation of the hearing date and leave to issue a subpoena – Notice of Appeal is prolix and difficult to understand – Appellant has had difficulty obtaining counsel – Appellant claimed he could not brief a barrister without the transcript or the Appeal Book – Appellant declined to provide communications with barristers regarding availability – Where the appellant’s difficulties are largely of his own making – Where the interests of justice are best achieved by giving an extension of time for filing but not to vacate the hearing date – Where the application for the subpoena needs to be heard by the Full Court hearing the appeal per r 13.34 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Application for subpoena adjourned. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.10 and r 13.34 Cases cited: CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Number of paragraphs: 29 Date of hearing: 20 March 2024 Place: Sydney (via video link) The Appellant: Self-represented litigant Counsel for the Respondent: Dr Smith Solicitor for the Respondent: Clancy & Triado ORDERS
NAA 353 of 2023
MLC 4528 of 2010FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR GIN
Appellant
AND: MS HING
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
20 MARCH 2024
THE COURT ORDERS THAT:
1.The time in which the appellant is to file and serve a Summary of Argument is extended up to and including 4.30 pm on 15 April 2024.
2.Leave is granted to file and serve an Amended Notice of Appeal on or before 4.30 pm on 15 April 2024.
3.In the event that either the Amended Notice of Appeal or the Summary of Argument or both documents are not filed by 4.30 pm on 15 April 2024 the appeal stands dismissed.
4.Leave is granted to the respondent to file and serve a further Summary of Argument on or before 4.30 pm on 24 April 2024.
5.The application for the issue of a subpoena to the Australian Health Practitioner Regulation Agency is adjourned to be heard by the Full Court at 10.00 am on 29 April 2024.
6.Costs of the Application in an Appeal are reserved to the hearing of the appeal.
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 Gin & Hing has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
This is an Application in an Appeal filed on 13 March 2024 which seeks an order extending the time for the appellant to file and serve a Summary of Argument, to vacate the hearing date of the appeal which is fixed for hearing on 29 April 2024 and for leave to issue a subpoena to the Australian Health Practitioner Regulation Agency (“AHPRA”).
The appeal relates to parenting orders made by a judge of the Federal Circuit and Family Court of Australia (Division 1) on 22 November 2023. The orders related to the parties’ child. Orders were made that the respondent have sole parental responsibility for the child who was to live with her and the child was to spend time with the appellant every second weekend, in general terms. The only orders that are the subject of the appeal are the orders providing for the child to spend time with the appellant and orders relating to overseas travel. The appeal is therefore of limited scope. I say this because although the trial occupied some 31 days, his Honour’s reasons are short and succinct and comprise just over 118 paragraphs.
A Notice of Appeal was filed on 20 December 2023 containing 59 separate grounds, many with sub-grounds. The Notice of Appeal is prolix, discursive, difficult to understand, repetitive and raises matters that appear, on their face at least, doomed to fail. The appellant accepts that an Amended Notice of Appeal should be filed and indeed he says he was advised to that effect by a barrister at least as early as 2 February 2024.
The matter came before an appeal judicial registrar for directions on 7 February 2024 when directions were made for the appellant to file and serve a Summary of Argument on which he sought to rely on or before 6 March 2024 with the respondent to file hers by 20 March 2024. Parties were subsequently advised the matter was listed for hearing before the Full Court on 29 April 2024.
Although the appellant did not raise the need for an Amended Notice of Appeal, he did not need to because r 13.10 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Family Law Rules”) permits him to amend the Notice of Appeal without leave anytime prior to the date fixed for the provision of a Summary of Argument. He has not done so and now needs leave.
Essentially, the basis for the orders sought of an extension of time to file a Summary of Argument, and implicitly an Amended Notice of Appeal, and vacate the hearing date is that the appellant has had difficulty in obtaining counsel to prepare these documents for him. It is relevant therefore to consider his efforts to obtain counsel.
That task has been made much more difficult because the appellant declined to “disseminate all communications between barristers and [him] which [contain] private, sensitive and/or privileged information” (appellant’s affidavit received 20 March 2024, paragraph 3). It is difficult to see how a communication between a barrister and the appellant as to their availability would contain such information, but it is not there.
Similarly, although the appellant deposes to making enquiries to several barristers lists, no details of that are provided.
On 5 December 2023, some 15 days before the Notice of Appeal was filed, the appellant contacted his barrister of choice and enquired about his availability to appear on the appeal. I interpose here that that barrister was not engaged by the appellant but was subsequently engaged by the respondent.
On 7 December 2023, the assistant to the barrister replied to the appellant confirming that the barrister did not have any availability until early to mid January 2024. The letter went on to say that the barrister anticipated he would need the transcript of the hearing and would probably need to set aside 10 days to prepare properly. The letter concluded “Should this be suitable to you, would you please provide the details of all parties, along with the name of the firm acting on your behalf (whether it be your own firm or another) so that I can prepare and provide you with a cost agreement for signature and return” (annexure “[MG]-B to the appellant’s affidavit received 20 March 2024). That request would not be unusual to the appellant who is a practising solicitor.
For reasons that are entirely unexplained in the evidence, the appellant did nothing in response to this letter until 26 February 2024 when he wrote to the barrister asking him to confirm whether or not he had been briefed for the respondent, and he advised that he had been.
I do not accept the appellant’s submission that he could not have briefed the barrister in the absence of the transcript. True, it may be that the transcript may have been needed at some stage in the future, but that did not prevent the barrister from being immediately engaged.
In his evidence the appellant said “Despite extensive effort and many inquiries, I was not able to successfully secure suitable counsel or senior counsel before 16 February 2024” (appellant’s affidavit filed 13 March 2024, paragraph 2). The significance of that date is that that was the date on which the Appeal Book became available. Again, I do not accept that the Appeal Book was essential before a barrister could be engaged. It is, after all, no more than a collection in convenient form of the documents that would already have been well available to the appellant.
As I have said, no detail is provided of the attempts to obtain a barrister other than general statements.
The appellant believed he had engaged a barrister on 1 March 2024 but that proved not to be successful. He then gave evidence that on 8 March 2024 he received indication from a barrister, who I will refer to as the prospective barrister, that she would be able to complete the Summary of Argument on 3 May 2024 and would be available for hearing on 24 June 2024. No appeals have been listed for hearing in Melbourne that week and it may well be that none are. The prospective barrister advised that an extension of time would be necessary, which led to the application being made.
During the meanwhile, a stay application in which the appellant was represented by counsel came before the primary judge on 2 February 2024 and it was that counsel apparently who advised “multiple times” that the grounds of appeal would need to be amended and to be distilled.
The difficulties that the appellant was having engaging counsel were seemingly not raised with the appeal judicial registrar on 7 February 2024, although the appellant did indicate that he sought an extension of a week over the orders that the appeal judicial registrar was proposing, which was successful. By that stage, two months had passed since the respondent’s counsel was first approached. The excuse given in the affidavit was that the appellant was waiting for the Appeal Book but I do not accept that for the reasons already given.
Doing the best I can on the evidence, I accept that the appellant has had some difficulties in engaging counsel, but they are largely of his own making. He could have sought counsel in December as he did even before the Notice of Appeal was filed, then seems to have done nothing about it until after the hearing before the appeal judicial registrar was conducted. He is therefore the author of his own difficulties.
This is an appeal that has been regularly commenced. In those circumstances, as the High Court pointed out in Jackamarra v Krakouer (1998) 195 CLR 516, the court is loath to dispose of an appeal simply for want of compliance with a procedural order unless the court can be satisfied that it would be futile not to do so because the appeal is entirely devoid of merit. I have been encouraged to make that finding by counsel for the respondent but the court at this stage of a hearing is in an invidious position in that it does not have access to the material that it would have at the hearing of an appeal or to the submissions that would be made in support of the appeal. I have already pointed out that a number of difficulties appear on the face of the Notice of Appeal, but I am not prepared to say at this stage that I am satisfied it is entirely devoid of merit.
There are other matters to be considered because justice is a two way street and whilst the appellant is entitled to a reasonable opportunity to prepare his appeal and prosecute it, even allowing for procedural missteps, the respondent too is entitled to have her interests considered. Quite properly, she has complied with the timetable of the appeal judicial registrar. I am informed that yesterday her Summary of Argument was lodged which deals, obviously, with all 59 grounds. If the Notice of Appeal is amended, as it needs to be, it is easy to infer that a large part of that work will have been wasted at considerable expense to the respondent. No offer has been made by the appellant to reimburse her for that wasted expense. She too is entitled to have the appeal come on in a prompt way and of course, vacating the hearing date of an appeal and subsequently fixing a later one will come at the cost of some other litigant who will miss out on that hearing date.
In his submissions, the appellant indicated that although he has an oral agreement with the prospective barrister to engage her, as I understand his statements, no fee agreement has yet been entered into. She is not here today. There is no guarantee in my view that things would pan out as the appellant said.
Doing the best I can in the circumstances, I think that the interests of justice are best achieved by giving the appellant an extension of time in which to file an Amended Notice of Appeal and Summary of Argument, but not to vacate the hearing date.
Accordingly, I will extend the time for compliance for the filing of the appellant’s Summary of Argument up to and including 15 April 2024. However there will be a further order that if it is not filed on that date by 4.30 pm, the appeal will stand dismissed. It will be a tight timeframe for the respondent but I will provide that the respondent may file a further Summary of Argument on or before 24 April 2024.
It remains then to deal with the subpoena. The application for the subpoena came about in this way. A single expert psychiatrist gave evidence at the hearing. She was cross-examined for at least five days by the appellant in which at least apprehended or actual bias was the subject of extensive questioning. Many of the grounds of the Notice of Appeal refer to the independence or otherwise of the single expert psychiatrist, the weight to be given to her opinions and the veracity of her evidence.
After reasons for judgment were delivered by the primary judge, the appellant found out that the registration of the single expert to practise as a psychiatrist had either been suspended or cancelled by AHPRA. He seeks to issue a subpoena to AHPRA to obtain not only the reasons for the suspension or cancellation but extensive other documents relating to any other complaint that may have been made against that psychiatrist.
Subpoenas are rarely issued as part of the appeals process because it is a quintessential role of a trial judge at a hearing to determine and assess the evidence. Any documents obtained pursuant to a subpoena could only come before a court on appeal if an application to adduce fresh evidence on the appeal is granted. At this stage, there is no such application.
As I indicated to the appellant during the course of argument, at least speaking for myself, I have difficulties with the form of the subpoena and its breadth. I also have difficulties with the fact that no attempts have been sought to obtain a copy of the reasons for the suspension or cancellation of the single expert’s registration as a psychiatrist. Counsel for the respondent has set out in his written reasons submissions as to the difficulties that might arise from the application of the principles set out by McHugh, Gummow and Callinan JJ in CDJ v VAJ (1998) 197 CLR 172 at 201.
The question then is what should be done with the application to issue a subpoena as sought. It seems to me there are two courses available to me. The first is to dismiss the application or the second is to refer the application for the subpoena to be heard by the Full Court that will hear the appeal because a subpoena may only be issued for an appeal to be heard by a Full Court by that Full Court (see r 13.34 of the Family Law Rules). There is no possibility of that court convening before 29 April 2024.
In those circumstances it seems to me the prudent course is to adjourn the application for the issue of a subpoena to be heard by the Full Court at 10.00 am on 29 April 2024. That will have the unfortunate consequence, no doubt, that if the court is persuaded the subpoena ought be issued the appeal will go over part heard. But the bench hearing that appeal will, by that stage, be in full possession of the submissions of the parties and be able to assess the merits of that application in the light of that knowledge. Importantly, in that assessment, the court has to determine whether the proposed new evidence would be likely to lead to a different outcome.
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 Aldridge. Associate:
Dated: 22 March 2024
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