Greer & Shui
[2022] FedCFamC1A 77
•25 May 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Greer & Shui [2022] FedCFamC1A 77
Appeal from: Shui and Greer [2021] FCWA 220 Appeal number(s): NAA 92 of 2021 File number(s): PTW 4762 of 2015 Judgment of: MCCLELLAND DCJ, AUSTIN & SUTHERLAND JJ Date of judgment: 25 May 2022 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal from the Family Court of Western Australia – Where the primary judge made interlocutory orders dismissing the applicant wife’s response to the respondent husband’s application for property settlement orders and granting leave to the respondent to proceed on an undefended basis – Where the applicant appeals from the interlocutory orders made by the primary judge – Where the applicant requires leave of the Court to press her application – Where the applicant retains her right to appeal final orders made in the proceedings – Appeal dismissed – Costs ordered in a fixed sum. Legislation: Family Law Act 1975 (Cth) s 117(2)
Family Court Rules 2021 (WA) rr 172, 173(1)(b)
Cases cited: Baghti & Baghti [2013] FamCAFC 194
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Helbig & Rowe and Ors (No. 2) (2014) FLC 93-625; [2014] FamCAFC 241
House v The King (1936) 55 CLR 499; [1936] HCA 40
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Yardlay & Commissioner of Police (2020) FLC 93-981; [2020] FamCAFC 186
Number of paragraphs: 16 Date of hearing: 25 May 2022 Place: Perth Counsel for the Applicant: Ms Anderson Counsel for the Respondent: Mr Berry SC Solicitor for the Respondent: O’Sullivan Davies Lawyers ORDERS
NAA 92 of 2021
PTW 4762 of 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS GREER
Applicant
AND: MR SHUI
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, AUSTIN & SUTHERLAND JJ
DATE OF ORDER:
25 MAY 2022
THE COURT ORDERS THAT:
1.The Notice of Appeal filed on 20 December 2021 is dismissed.
2.The applicant pay the respondent’s costs of and incidental to the application for leave to appeal in the fixed sum of $15,000.
3.Payment pursuant to Order 2 be postponed to a period of 7 days subsequent to delivery of judgment by the primary judge in respect to the Part VIII proceedings in which respect he has currently reserved judgment.
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 Greer & Shui has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTMCCLELLAND DCJ:
INTRODUCTION
By Notice of Appeal filed 20 December 2021, the applicant wife proposes to appeal against an interlocutory and discretionary decision by a judge of the Family Court of Western Australia (“the primary judge”) dated 26 November 2021. The primary judge dismissed the wife’s response to the respondent husband’s application for property settlement orders and granted leave to the respondent to proceed on an undefended basis.
It is conceded by the applicant for leave to appeal that leave to appeal is required. For the reasons which follow, leave should not be granted and the Notice of Appeal dismissed.
THE DECISION BY THE PRIMARY JUDGE
The orders which are the subject of the proposed appeal were made pursuant to r 172 of the Family Court Rules 2021 (WA) (“the rules”). Pursuant to that rule, in the event of the primary judge finding that the applicant had failed to comply with an order of the Court, the primary judge was empowered to “dismiss all or part of the case” (r 172(2)(a)) or “determine the case as if it were undefended” (r 172(2)(c)).
The primary judge determined that such orders were necessary and appropriate having regard to the history of the proceedings, including the length of delay, the inadequacy of adequate explanation provided by the applicant for that delay and multiple instances of the applicant’s failure to comply with case management orders up to and including the hearing on 26 November 2021.
LEAVE TO APPEAL
Supposing that the proposed appeal is competent, it is uncontentious that since the orders of the primary judge related to matters of practice and procedure, the grant of leave is necessary to enable the applicant for leave to prosecute the appeal.
The test as to whether such leave should be granted is a conjunctive one, namely, whether firstly, the decision of the primary judge is attended by sufficient doubt so as to warrant its reconsideration by the Full Court and, secondly, whether a substantial injustice would occur if leave were not granted (Medlow & Medlow (2016) FLC 93-692 at [57]).
DISPOSITION
I am not satisfied that the decision of the primary judge is attended by sufficient doubt as to warrant its reconsideration by the Full Court. In that respect, I note that in the proceedings before the primary judge, counsel for the applicant for leave acknowledged that the primary judge was “quite right to be critical, very critical” of the applicant’s conduct in the litigation. (Transcript 26 October 2021, p.12 line 20). Clearly, his Honour was not satisfied with the explanations provided by the applicant as to her reasons for failing to comply with orders on a number of occasions and the considerable delay in complying with orders on other occasions. The orders the primary judge made in the context of those findings were well within the proper exercise of the primary judge’s discretion (House v The King (1936) 55 CLR 499 at 504–505).
It is, however, unnecessary to consider the merits of the appeal because I am not satisfied that the applicant would suffer a substantial injustice if leave were not granted. This is because the orders of the primary judge did not extinguish or finally determine the rights of the applicant.
Specifically, the applicant retained her right to make a further application, pursuant to r 173(1))(b) of the rules, for relief from “an order under r 172(2)”. It is uncontroversial that the applicant exercised such right, pursuant to a Form 2 application filed by her on 2 March 2022, which was ultimately determined and dismissed by the primary judge on 10 March 2022 (Respondent’s Summary of Argument filed 19 April 2022, paragraphs 11–12). There is no appeal (with or without an application for leave) from that dismissal order made on 10 March 2022.
Further, it is uncontroversial that, on 10 March 2022, the primary judge proceeded to hear the substantive proceedings on an undefended basis, in relation to which judgment is still reserved. These proposed appeal proceedings are therefore a futility: Baghti & Baghti [2013] FamCAFC 194; Helbig & Rowe and Ors (No. 2) (2014) FLC 93-625; Yardlay & Commissioner of Police (2020) FLC 93-981. In that respect, the applicant for leave retains an entitlement, as of right, to challenge in an appeal from the final property settlement orders that may be made by the primary judge and any earlier interlocutory order, including the order which is the subject of the current proposed appeal, and which she may contend has affected the final result: Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at [6].
Accordingly, I am not satisfied that the applicant will suffer a substantial injustice by the Court declining to grant leave for her to proceed with the appeal and, on that basis, I would dismiss the Notice of Appeal.
COSTS
In circumstances where I have determined that there is no utility in the appeal, there are plainly circumstances that justify an order for costs against the applicant within the meaning of s 117(2) of the Family Law Act 1975 (Cth).
I note the applicant’s assertions as to her impecuniosity and her contentions that the respondent retains control of the substantial portion of the parties’ matrimonial property. Those considerations do not, however, in my opinion, overwhelm the fact that the applicant has been wholly unsuccessful in the application for leave to appeal, which I have found to be without merit and wholly unnecessary.
Accordingly, the orders of the Court will be:
(1)The Notice of Appeal filed on 20 December 2021 is dismissed.
(2)The applicant pay the respondent’s costs of and incidental to the application for leave to appeal in the fixed sum of $15,000.
(3)Payment pursuant to Order 2 be postponed to a period of 7 days subsequent to delivery of judgment by the primary judge in respect to the Part VIII proceedings in which respect he has currently reserved judgment.
AUSTIN J:
I agree with the orders proposed and reasons given by the Deputy Chief Justice.
SUTHERLAND J:
I also agree with the proposed orders and judgment of the Honourable Deputy Chief Justice McClelland and have nothing further to add.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Austin & Sutherland. Associate:
Dated: 3 June 2022
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