Iannello and Iannello (No.4)
[2019] FCCA 3842
•19 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| IANNELLO & IANNELLO (No.4) | [2019] FCCA 3842 |
| Catchwords: FAMILY LAW – Interim judgment – refusal to transfer to Family Court of Australia – dismissal of Application in a Case to stay proceedings pending the determination of appeal – refusal of oral application for the bifurcation of the proceeding – where the Respondent Husband is awaiting the determination of Serious Injury Application – Respondent Husband’s Serious Injury Application lodged 18 November 2019 – Respondent Husband’s injuries sustained in October 2012. |
| Legislation: Family Law Act 1975 (Cth), s.79 Federal Circuit Court of Australia Act 1999 (Cth), s.39(6) Federal Circuit Court Rules 2001 (Cth), r.8.02 |
| Cases cited: Aldridge & Keaton (Stay Application) [2009] FamCAFC 106 |
| Applicant: | MS IANNELLO |
| Respondent: | MR IANNELLO |
| File Number: | MLC 3008 of 2018 |
| Judgment of: | Her Honour Judge C E Kirton QC |
| Hearing date: | 19 November 2019 |
| Date of Last Submission: | 19 November 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 19 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smallwood SC |
| Solicitors for the Applicant: | Marshalls & Dent & Wilmoth |
| Counsel for the Respondent: | Mr Williams |
| Solicitors for the Respondent: | Bayside Family Law Solutions |
| Counsel for the Independent Children’s Lawyer: | Mr Ham |
| Solicitors for the Independent Children’s Lawyer: | McKean Park Lawyers |
ORDERS
The Respondent Husband’s Application in a Case filed on 13 November 2019 is dismissed.
The Respondent Husband’s oral application made on 19 November 2019 for bifurcation of the final hearing is refused.
Costs reserved.
IT IS NOTED that publication of this judgment under the pseudonym Iannello & Iannello (No.4) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3008 of 2018
| MS IANNELLO |
Applicant
And
| MR IANNELLO |
Respondent
REASONS FOR JUDGMENT
This matter comes before the Court by way of an Application in a Case which was filed on 13 November 2019. The orders sought in that Application in a Case are that the order of the Court made on 3 October 2019, as amended on 31 October 2019, in relation to property matters be stayed pending the determination of the Applicant Husband’s appeal filed with the Family Court of Australia on 30 October 2019. The second order is that the Respondent Wife pay the Applicant Husband’s costs of and incidental to this application on an indemnity basis.
The Application in a Case was supported by the Affidavit of the Husband’s solicitor which was filed on 13 November 2019. The Notice of Appeal was filed on 30 October 2019. There are two grounds of appeal: the first is that, pursuant to r.8.02 of the Federal Circuit Court Rules 2001 (Cth), this matter be transferred to the Family Court of Australia, Melbourne Registry, and (2) that in the event that the matter is not transferred to the Family Court of Australia, then it be listed for a mention upon the determination of the Applicant Husband’s Serious Injury Application.
It is now conceded that the first ground has no basis due to s.39(6) of the Federal Circuit Court of Australia Act 1999 (Cth), as no appeal lies from a refusal to transfer a matter to the Family Court. For today an oral application is made for the bifurcation of the trial. No appeal is made for the refusal to do so when that application was made on 3 October 2019. Now, the reason for the adjournment of the trial is for the Husband to make a Serious Injury Application. The Court was advised today by Counsel for the Husband that a claim was lodged yesterday with the Victorian WorkCover Authority.
The principles applying for a determination of an Application for the Stays of Orders was set out by the Full Court in Aldridge & Keaton (Stay Application) [2009] FamCAFC 106. Part of that is the assessment of the strength of the appeal. In my view, there are considerable deficiencies in the strength of the appeal. The main deficiency is the appeal proposed an adjournment to an unspecified time in the future, which may never eventuate.
In particular, I rely upon the affidavit of Tim Tobin SC, which was filed in this proceeding on 26 March 2019. I refer to the following paragraphs. At paragraph 10, Mr Tobin SC says:
Maurice Blackburn lodged an impairment benefits claim pursuant to s.98C of the Accident Compensation Act on Mr Iannello’s behalf on 16 March 2017. This was 3 years and 5 months after Mr Iannello instructed that firm to act. This delay is unusual in personal injury claims and is unexplained in Mr B’s Affidavit.
Then in paragraph 15, Mr Tobin SC says:
For this reason, where a worker has the potential of a common law claim, standard practice is to bring any claim pursuant to s.98C early and with vigour, or not to bring an impairment benefits claim at all. It’s most unusual that it took 3 years and 5 months for Mr Iannello’s lawyers to bring an impairment benefit claim. It is very unusual that nothing appears to have been done in the following 2 years.
Then at paragraph 31, Mr Tobin SC says:
I am of the opinion that:
(a)there has been no proper pursuit by Mr Iannello or his solicitors in his claim for damages; or
(b)the full extent of efforts that have been made in the pursuit of that claim for damages have not been disclosed.
In my view, the appeal has no merit. I also note from Mr Tobin SC’s affidavit that his opinion in relation to the substance of claim is highly qualified. In paragraph 4, he says:
My opinion is limited to the extent that:
(a)I have not seen a copy of the Maurice Blackburn file, in relation to which I am instructed that Mr Iannello has exercised a claim of legal professional privilege;
(b)I have not seen the documents comprising Mr Iannello's Total and Permanent Disability Claim, which I am instructed Mr Iannello has declined to produce; and
(c)I have not seen the documents to be produced under subpoena by the Victorian WorkCover Authority, which I am instructed cannot be released until after the last date for filing of this Affidavit.
In paragraph 5 he says:
My opinion may need to be updated if or when I am able to consider those documents.
In my opinion, Mr Tobin’s opinion is highly qualified. In accordance with the decision of the Full Court of the Family Court, the Court must also have regard to the bona fides of the appellant. In my view, I have real concerns in relation to the bona fides of this application, and, in my view, it is an attempt to delay the determination of this case. In this case, the premise of the Application in a Case, the dismissal of which is appealed, is that the Husband’s financial circumstances may change because he intends to make a claim for serious injury.
The Husband was injured in October 2012, and it is now more than seven years from the time of his injury, and it was only yesterday, apparently, that the Serious Injury Application was lodged. On 3 August 2018, this matter was listed for final hearing on 20 May 2019. Then on 23 April 2019, the final hearing was relisted to 20 August 2019. Then on 15 August 2019, the final hearing was, again, relisted to today’s date.
It appears that the Husband did not pursue the transfer of the proceeding to the Family Court. It has been some 14 months after the first listing of the matter for final hearing that the Husband has pursued his Serious Injury Application. The Court also has to take into account the balance of convenience, and, in my view, there is prejudice to the Wife if the stay is granted.
It would result in a denial of the Wife’s legitimate claim to have her application heard in a timely manner, and if there was a bifurcation of proceeding, it would result in prejudice because the pool is small in this case. It has already been markedly diminished by legal costs in this proceeding, and, accordingly, in my view, the Wife would suffer prejudice and the balance of convenience favours this matter proceeding.
I also take into account that the Wife intends to amend her Further Amended Initiating Application in accordance with what is set out in paragraph 21 of the Affidavit of the Wife’s solicitor, Mr Ellis, that was filed on 15 November 2019, where Mr Ellis says:
I am instructed to amend any application by the Wife for division of any serious injury claim to seek 50% of that part of the determination which relates to income compensation up to the date of the trial.
I also take into account, as I said on the last occasion, that the Court would be able to take advantage of s.79(5) and (6) of the Family Law Act 1975 (Cth), should it be requested to do so in the circumstances. Accordingly, I will dismiss the Application in a Case that was filed on 13 November 2019, and I refuse the oral application for the bifurcation of the final hearing.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Judge C E Kirton QC
Date: 5 February 2020