Gin & Hing (No 2)
[2024] FedCFamC1A 59
•15 April 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Gin & Hing (No 2) [2024] FedCFamC1A 59
Appeal from: Gin & Hing [2024] FedCFamC1A 36 Appeal number(s): NAA 353 of 2023 File number(s): MCL 4528 of 2010 Judgment of: SCHONELL J Date of judgment: 15 April 2024 Catchwords: FAMILY LAW – APPEAL– Application in an Appeal – Extension of time – Vacation of hearing dates – Where the appellant seeks to extend the time to file a Summary of Argument and to vacate hearing dates for the appeal – Where this is the second application seeking similar relief – Where the evidence reveals that counsel was available to file on time – Where the parties have been litigating for over 13 years – Where the merits of the appeal are an important, but not a determinative, consideration – Where the application constitutes an abuse of process – Where there is a continuing prejudice to the respondent in terms of delay and cost – Application dismissed. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Rule 13.10 Cases cited: Gallo v Dawson (1990) 93 ALR 479
Gin & Hing [2024] FedCFamC1A 36
Gin & Hing (No 8) [2023] FedCFamC1F 954
Jackamarra v Krakouer (1998) 195 CLR 516
Jess v Garvey (2018) 93-827
Scott (No 3) [2023] FedCFamC1A 227
Number of paragraphs: 26 Date of hearing: 15 April 2024 Place: Sydney (via Microsoft Teams) Counsel for the Appellant: Ms Colla Solicitor for the Appellant: MST Lawyers Counsel for the Respondent: Dr Smith Solicitor for the Respondent: Clancy and Triado Independent Children's Lawyer: Did not participate ORDERS
NAA353 of 2023
MCL 4528 of 2010FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR GIN
Appellant
AND: MS HING
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SCHONELL J
DATE OF ORDER:
15 APRIL 2024
THE COURT ORDERS THAT:
1.The Application in an Appeal filed 11 April 2024 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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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
SCHONELL J:
On 11 April 2024, the appellant filed an Application in an Appeal seeking, amongst other relief, the vacation of the hearing date of the appeal and an extension of time in which to file a Summary of Argument to 13 May 2024. The application also seeks orders in relation to a subpoena. This is the second Application in an Appeal filed by the appellant, seeking relief in similar terms.
On 20 March 2024, the prior appeal judge refused an application by the appellant to vacate the hearing dates but extended the time in which to file a Summary of Argument to 4.00pm on 15 April 2024, failing which the appeal would stand dismissed. The appellant has not so far complied with this order.
The evidence in support of the application is remarkably similar to the evidence relied upon in the earlier application, namely the appellant’s assertion that his Notice of Appeal requires amendment, that he is unable to comply with directions to file a Summary of Argument as he has been unable to retain counsel to undertake that task, and that he has been unable to retain counsel to appear on the appeal.
For the purposes of the application, I indicated to the parties I have read the applications in an appeal filed 13 March 2024 and 11 April 2024, the affidavits of the appellant filed 8 March 2024 and 11 April 2024, the affidavit of his solicitor filed the same day, the respondent’s Summary of Argument, the respondent’s Outline of Submissions, the Reasons for Judgment of the prior appeal judge, and have a working knowledge of the Appeal Book.
The primary judge delivered his Reasons for Judgement on 22 November 2023, in parenting proceedings between the appellant and the respondent. The primary judge made orders that the parties’ child live with the respondent, that she have sole parental responsibility, and that the child spend time with the appellant on alternate weekends and school holidays. Various other orders were made for time on special occasions and overseas travel.
On 20 December 2023, the appellant filed a Notice of Appeal. The appellant appeals only the spend time with and overseas travel orders. The appellant says that he was advised by counsel, on 2 February 2024, that the Notice of Appeal required amendment.
On 7 February 2024, directions were made by a registrar for the appellant to file a Summary of Argument by 6 March 2024. The parties were subsequently notified that the appeal is listed for hearing before the Full Court on 29 April 2024.
In circumstances where the central complaint of the appellant is his inability to retain counsel, some review of his asserted efforts to do so requires consideration. The first appeal judge records in his reasons:
9On 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.
10On 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 [...].
11For 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.
12I 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.
13In 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.
…
17The 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.
(Gin & Hing [2024] FedCFamC1A 36)
In the appellant’s affidavit sworn 8 March 2024 he states:
8. I am relieves [sic] that on 8 March 2024, I had obtained indicative commitment from Ms [KK] of counsel and Ms [LL] of counsel.
(a) Ms [KK] has indicated that she would be able to complete the summary of arguments by 27 March 2024 however is otherwise not available on 29 April 2024 and is mostly probably also not available on 27 May 2024 at the next appeals sitting. She is available on 24 June 2024.
(Affidavit of the appellant filed 13 March 2024, p.3-4)
That paragraph reveals that there was counsel available to prepare the summary of argument by 27 March 2024, but not appear on the hearing. Accordingly, I do not accept the appellant has not been able to retain counsel to prepare the Summary of Argument, as it is inconsistent with his sworn evidence. He simply elected not to do so, preferring instead to seek an adjournment.
The appellant’s affidavit filed 11 April 2024 recites, in the first 18 of 23 paragraphs, the relief he now seeks, his assertion that he is unable to represent himself, and matters of history up to the making of the Orders on 20 March 2024. The remaining paragraphs recite attempts to engage counsel, and the engagement of a solicitor on 27 March 2024.
His solicitor’s affidavit records that she is an accredited family law specialist; that she has read some, but not all, of the Appeal Book; that she has been unable to retain counsel having contacted various Victorian Chambers; and that it is not possible for the matter to proceed on 29 April 2024. She says that she was not formally engaged until 26 March 2024, and did not access the court portal until 28 March 2024.
Notwithstanding not accessing the portal until 28 March 2024, on 27 March 2024 she sent a letter to the solicitors for the respondent. That letter seeks the respondent consent to an adjournment of the appeal to a date after 17 June 2024 and for an extension of time in which to file a Summary of Argument. That request is in near identical terms to that sought before the first appeal judge some seven days earlier, which was refused by His Honour. A reasonable inference is the appellant had already determined, as at 27 March 2024 if not earlier, that the matter should be adjourned.
The letter requested a response by 4.00pm the next day, failing which the appellant would file an Application in an Appeal. The annexures to the affidavit reveal the letter was not emailed until 9:52pm on 27 March. No response was received in the requested timeframe. No explanation is provided as to why, despite the stipulated timeframe, the appellant has waited two weeks before filing an application in an appeal.
The appellant, no doubt anticipating the submissions of the respondent, submits that since 20 March 2024, the appellant has retained a solicitor; put money in trust; and, I am advised by counsel who appears today, that the appellant has engaged counsel to prepare documents for the appeal. These, so the submission goes, are all new matters that are different to the situation before the first appeal judge. The respondent contends that the current Application in an Appeal constitutes an abuse of process, in that it is substantially the same as the Application in an Appeal filed 20 March 2024 in seeking an extension of time and an adjournment of the appeal. The Respondent’s counsel submits that there has been no material change of circumstances and, prima facie, the application constitutes an abuse of process.
The relief sought by the appellant was refused by the first appeal judge. The evidence in support is not materially different. The appellant had counsel available to prepare a Summary of Argument by 27 March. The fact that he does now is no different. I am not satisfied that the mere fact that he has now retained a solicitor and placed money in trust is a circumstance that is materially different. He has known, since 2 February 2024, that he needed to amend the Notice of Appeal and retain lawyers. His affidavit of 8 March 2024 speaks to that fact. I am satisfied that the Application in an Appeal constitutes an abuse of process (see Jess v Garvey (2018) 93-827 and Scott (No 3) [2023] FedCFamC1A 227.
In the event that I am wrong in determining the application constitutes an abuse of process, then the issue for determination is whether the Court should, in the exercise of its discretion, grant the appellant a further extension of time in which to file a Summary of Argument, despite his failure to comply with earlier directions. If it does, then the issue of an adjournment and the subpoena needs to be considered. If the Court determines not to grant an extension, then it is unnecessary to address the question of an adjournment and the subpoena, as the appeal will stand dismissed by the terms of Order made 20 March 2024.
The principles applicable to the issue of extension of time were addressed by the High Court in Gallo v Dawson (1990) 93 ALR 479 (“Gallo”) and Jackamarra v Krakouer (1998) 195 CLR 516. Justice McHugh in Gallo observed, at 480:
…The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v. National Trustees Executors and Agency Co. of Australasia Ltd. [1978] VicRp 27; (1978) VR 257, at p 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v. No.2 Public Service Appeal Board (1973) 2 NZLR 86, at p 92; Jess v. Scott (1986) 12 FCR 187, at pp 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v. Grigg [1967] VicRp 113; (1967) VR 871, at p 872; Hughes, at pp 263-264; Mitchelson v. Mitchelson (1979) 24 ALR 522, at p 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v. Heinegar (1962) 36 ALJR 200, at p 201.While his Honour’s observations were referable to an extension of time in which to file a Notice of Appeal against an order made by the High Court in its original jurisdiction, the principles are of wider application.
The determination of the application involves the exercise of a discretion to ensure that the application of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Rules”) do not work an injustice: not just to the appellant, but also the respondent. The appellant has already had one extension and, so far, not complied with it. I am satisfied that the predicament the appellant finds himself in is entirely of his making. As the first appeal judge observed, he could have retained counsel in December 2023 but did nothing about it. He subsequently found counsel who could have prepared the Summary of Argument by 27 March 2024, but chose not to retain them. Had he done so, then any necessary amendments to the Notice of Appeal could have been addressed in the Summary of Argument (see Rule 13.10 (1) of the Rules) in the timeframe ordered.
I am not satisfied that the appellant has acted diligently. The first application to extend the time in which to file the Summary of Argument was filed after the time had expired. While the second was filed four days before the expiration of the time in which to file, it is clear from the correspondence of his solicitor that the appellant had determined, some seven days after the Order was made on 20 March 2024, that the time frame could not be met but did nothing to promptly relist the matter, perpetuating the delay.
These parties have been litigating in this Court for over 13 years (see Reasons for Judgment of the primary judge, paragraph 55, Gin & Hing (No 8) [2023] FedCFamC1F 954). Further delay works an injustice to the respondent. She has already complied with directions by filing a Summary of Argument. Further extensions would inevitably increase her costs and perpetuate what has already been inordinately long litigation. She is entitled to the benefit of the Judgment.
The determination of the merits requires a consideration as to whether the appeal can be described as “arguable”. No submissions were made by the appellant on this issue, beyond asserting that it is not doomed to fail and has merit. The first appeal judge described the state of the appeal in the following terms:
3...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.
(Gin & Hing [2024] FedCFamC1A 36)
The merits of the appeal can only be assessed by reference to the available documents, namely the Appeal Book. The Notice of Appeal provides no assistance. A review of the Appeal Book demonstrates the first appeal judge’s description to be apt and accurate. The first appeal judge charitably observed, despite the noted difficulties with the Notice of Appeal, that he could not be satisfied that it was “entirely devoid of merit” (see Gin & Hing [2024] FedCFamC1A 36, para 19). However, as the High Court has observed, while the merits of the appeal are an important consideration, they are but one consideration.
In summary, the appellant has had at least two counsel who could have done the Summary of Argument in the requisite time periods, but he sought not to retain them promptly. These parties have been litigating for 13 years, and there is a continuing prejudice to the respondent in delay and cost.
On balance, having regard to all of the above matters, I am not satisfied, in the exercise of my discretion, that Order 3 made by the first appeal judge should be varied. This consequence renders determination of the balance of the application otiose.
Accordingly, the application in an appeal filed 11 April 2024 will be dismissed.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Schonell. Associate:
Dated: 16 April 2024
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