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Gin & Hing (No 2)

Gin & Hing (No 2)

Case [2024] FedCFamC1A 59 15 April 2024

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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 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gin & Hing (No 2)

Details

AGLC: Gin & Hing (No 2) [2024] FedCFamC1A 59
Case: [2024] FedCFamC1A 59
Decision Date: 15 April 2024

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia addressed an application in an appeal brought by Mr Gin, the appellant, against Ms Hing, the respondent. This case pertains to Mr Gin's request to extend the time for filing a Summary of Argument and to vacate the hearing dates for the appeal. Notably, this is the second time Mr Gin has made such a request. The legal issues before the court involved whether Mr Gin's application constituted an abuse of process, given the extensive history of litigation between the parties and the availability of counsel to file on time. Additionally, the court had to consider the impact of the delay and additional costs on the respondent, Ms Hing.

Schonell J, who presided over the case, concluded that Mr Gin's application was an abuse of process. The court found that the application was made despite the availability of counsel to file on time and the parties' prolonged litigation history, which spanned over 13 years. The merits of the appeal, while important, were not the primary consideration in the decision. The court emphasised the significant prejudice to the respondent, including the ongoing delay and increased costs, which further supported the dismissal of the application. The court was cautious to ensure that the proceedings were not unnecessarily prolonged and that the respondent's rights were protected.

In light of the findings, the court dismissed the application in the appeal filed on 11 April 2024. The decision underscores the importance of adherence to timelines and the potential consequences of abusing the court process, particularly in cases with a long history of litigation. The order made by the court was that the application in the appeal was dismissed, with no further orders made regarding the substantive appeal at that time.

Orders

Orders of the court

NAA353 of 2023

MCL 4528 of 2010

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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Citations

Gin & Hing (No 2) [2024] FedCFamC1A 59

Most Recent Citation

Gin & Hing (No 11) [2024] FedCFamC1F 365

Cases Citing This Decision

Gin & Hing (No 11) [2024] FedCFamC1F 365
Citation 1 (Para 19)

…of the full court have held that the father is the author of his own difficulties. [21] Gin & Hing [2024] FedCFamC1A 36 and Gin & Hing (No 2) [2024] FedCFamC1A 59.…

See all citing cases →

Cases Cited

Gin & Hing [2024] FedCFamC1A 36
Citation 1 (Para 8)

…davit 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)…
Scott (No 3) [2023] FedCFamC1A 227
Citation 2 (Para 16)

…eaks 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.…
Gin & Hing (No 8) [2023] FedCFamC1F 954
Citation 3 (Para 21)

…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…
Jess v Garvey [2018] HCASL 202
Citation 4 (Para 16)

…ain 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.…
Jackamarra v Krakouer [1998] HCA 27
Citation 5 (Para 18)

…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 e…
Gallo v Dawson [1990] HCA 30
Citation 6 (Para 18)

…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…
Jess v Scott [1986] FCA 473
Citation 7 (Para 18)

…ant 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 applic…
Mitchelson v Mitchelson [1979] FCA 48
Citation 8 (Para 18)

…plicant 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…
Hughes v National Trustees, Executors and Agency Co of Australasia Ltd [1979] HCA 2
Citation 9 (Para 18)

…rt 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 inj…
(1973) 2 NZLR 86 (1973) 2 NZLR 86
Citation 10 (Para 18)

…he 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 necessa…
Vilenius v Heinegar (1962) 36 ALJR 200
Citation 11 (Para 18)

…y 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 Cour…

Legislation Cited

Family Law Act 1975 (Cth)
1 mention

NAA353 of 2023 MCL 4528 of 2010
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR GIN Appellant
AND:	MS HING Respondent
INDEPENDENT CHILDREN'S LAWYER

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

ORDER MADE BY:	SCHONELL J
DATE OF ORDER:	15 APRIL 2024