Jacquet & Levitt
[2023] FedCFamC1A 125
•7 August 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Jacquet & Levitt [2023] FedCFamC1A 125
Appeal from: Levitt & Jacquet [2023] FedCFamC2F 387 Appeal number(s): NAA 122 of 2023 File number(s): BRC 8429 of 2021 Judgment of: RIETHMULLER J Date of judgment: 7 August 2023 Catchwords: FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Provision of transcript – Factors relevant in support of an application for the provision of transcript at the Court’s expense – Whether there are merits in the grounds of appeal which justify the provision of transcript – Complaints as to conduct of lawyer at trial – Trial lasting only 61 minutes – Orders for Court to provide transcript at first instance – Whether either or both parties required to pay costs of transcript reserved until conclusion of appeal. Legislation: Family Law Act 1975 (Cth) ss 79A, 102NA
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.23
Cases cited: Clark v New South Wales [2012] NSWCA 139
Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189
Levitt & Jacquet [2023] FedCFamC2F 387
Mawhinney v Australian Securities and Investments Commission (2022) 405 ALR 292; [2022] FCAFC 159
Mercier & Deagan (2015) FLC 93-674; [2015] FamCAFC 207
OP v TP and Anor (Conduct of Counsel) (2003) 30 Fam LR 281; [2002] FamCA 1155
Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220
Smits v Roach (2006) 227 CLR 423; [2006] HCA 36
Number of paragraphs: 16 Date of hearing: 2 August 2023 Place: Parramatta (via video link) The Appellant: Litigant in person Solicitor for the Respondent: Mr J Horsey ORDERS
NAA 122 of 2023
BRC 8429 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR JACQUET
Appellant
AND: MS LEVITT
Respondent
ORDER MADE BY:
RIETHMULLER J
DATE OF ORDER:
7 AUGUST 2023
THE COURT ORDERS THAT:
1.The Court obtain and provide to the appellant and the respondent a copy of the transcript of the trial before the primary judge on 30 March 2023.
2.That the question of whether the parties, or either of them, meet the costs of the transcript be reserved.
3.The times provided for in the orders of 19 June 2023, be amended such that:
(a)The time for the appellant to comply with Order 13 and Order 14 be amended to 1 September 2023; and
(b)The time for the respondent to comply with Order 15 be amended to 15 September 2023.
4.The Application in an Appeal filed 11 July 2023 be otherwise dismissed.
5.The costs of the Application in an Appeal be reserved.
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 Jacquet & Levitt has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
RIETHMULLER J:
The appellant seeks orders dispensing with Orders 6 and 7 of the orders of 19 June 2023 which require him to file a copy of the transcript of the trial before the primary judge and he is seeking an order that the court provide the transcript.
The court is not funded by the government to provide transcripts for appellants. However, the court has the power to order that a transcript be provided to the parties (rather than the appellant providing the transcript in support of the appeal) “where it is demonstrably in the interests of justice”: see Forbes & Bream (2008) 222 FLR 96 at [28]; Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 at [14] and [18]. Relevant considerations may include (Sampson & Hartnett at [16]):
(a) Whether the case is a financial or parenting case.
(b) Whether the whole transcript or part thereof is necessary for the determination of the appeal or part of the appeal.
(c) The likely cost of the relevant transcript and whether the applicant can afford all or part of the cost of the transcript.
(d) The proportionality of the cost of the transcript to the appellant’s anticipated costs in relation to the whole appeal, including the preparation of the appeal book(s).
(e) The prima facie merits of the appeal.
(f) Whether the question of providing a transcript can be left to the Full Court hearing the appeal.
(g) Any other relevant facts or circumstances.
The appeal concerns a property decision where the primary judge divided the property of the parties 75 per cent to 25 per cent in favour of the respondent, with a pool of assets and superannuation of around $547,000. The parties commenced cohabitation in 2004 and have two children who are now 18 and 16 years of age. At the start of the relationship, the respondent had a home with modest equity (around $80,000 when it was sold in 2006). The date of separation was disputed; however, the appellant left the household in 2017. The appellant has not seen the children since separation and pays no child support. The eldest child suffers from a disability and continues to rely upon the respondent as his carer. The home in which the parties cohabited was modified to assist with the child’s needs. The primary judge accepted that there had been a long history of significant family violence (as set out at para [18] to [20] of the judgment). In 2014, the appellant received $366,000 from a personal injuries’ settlement following a physical injury, however he continues to work as a tradesperson and currently earns a modest income. This summary is brief and therefore necessarily incomplete: all of the factors relied upon by the primary judge are set out in the reasons for judgment: see Levitt & Jacquet [2023] FedCFamC2F 387.
The respondent argues that the property settlement should have been a 50/50 split, relying principally upon his significant financial contribution from the personal injury settlement (a sum representing around 66 per cent of the parties’ assets and superannuation).
The appellant is unrepresented. His oral submissions before me were garrulous, lacking in specifics, emotive and often offensive and threatening. His presentation did nothing to advance his argument. The sole ground of appeal in his notice of Appeal is expressed in broad terms:
The judge made the wrong decision with the lies [Ms Levitt] gave her, and the lawyer the courts gave me didn’t dispute anything and he had my response. I tried to say something in court about it and he shut me down saying it’s all done he told me its written in my Affidavit and doesn’t need to be disputed. I tried a couple more times and nothing. So everything the judge had to work with was wrong making her decision wrong and if not fixed to 50/50 will destroy my life.
Clearly the appellant’s lawyer was not provided by the court, but on a grant of legal aid following application by the appellant (relying upon an order or declaration pursuant to s 102NA of the Family Law Act 1975 (Cth) (“the Act”) preventing him from cross-examining the respondent personally). The appellant does not challenge that order but alleges that the lawyer representing him failed to properly put forward his case, leading to the primary judge proceeding upon incorrect facts.
In substance, the appellant appears to articulate two grounds of appeal: First, that the lawyer representing him conducted the case in a way that was unjustified or incompetent, and secondly, that the exercise of the primary judge’s discretion miscarried.
Ordinarily, in civil proceedings, a complaint as to the conduct of one’s own lawyer (the effect of the appellant’s primary argument) is a matter between the litigant and their lawyer and would not be the basis for an appeal: see Smits v Roach (2006) 227 CLR 423 at [46]. Unjustified or incompetent conduct of a lawyer may be a basis for an appeal if it were so serious as to cause a “trial to miscarry” (see Clark v New South Wales [2012] NSWCA 139 at [74]) or “an actual miscarriage of justice” (see Mawhinney v Australian Securities and Investments Commission and Ors (2022) 405 ALR 292) and analogous with s 79A of the Act or in “exceptional circumstances” (see Jaffarie v Quality Castings Pty Ltd [2018] NSWCA 88 at [40]). However, the test in property cases (like civil cases generally) is far more constrained than that in criminal law and children’s cases (see OP v TP and Anor (Conduct of Counsel) (2003) 30 Fam LR 281). I am not presently aware of an Australian civil case where an appeal has been allowed on this basis. Despite the lack of authorities on this point with respect to civil cases, it appears arguable that an appeal lies where the minimum standards of procedural fairness required in a trial are not achieved due to wrongful conduct of a lawyer. It is not necessary or desirable, at this point, to make findings as to the precise test to be applied, however, the appellant would be wise to carefully reflect upon the terms of the findings in Mercier & Deagan [2015] FamCAFC 207 at [114] that:
These tests pose a significant hurdle. The [appellant] called no evidence in attempting to meet them. Rather [the appellant] merely relied on … written submissions which were general in the extreme. For example it was alleged that the solicitors “failed to prepare for trial proceedings and failed to prepare Affidavits”. Without specific evidence as to what the solicitors are alleged to have done or not to have done and what prejudice arose from those failures, there cannot even be a consideration of whether, with appropriate representation, there would have been a different outcome to the hearing, let alone a finding to that effect.
I do not accept the appellant’s claim that he requires a lawyer to compile particulars of the conduct of the lawyer about which he complains: he clearly has many complaints about the lawyer’s conduct that he could reduce to writing. In the absence of particulars of the conduct of the lawyer (that is, a list of the specific things it is alleged the lawyer did or failed to do that resulted in an unfair trial or miscarriage of justice) the first ground is likely to fail.
The appellant’s garrulous and emotive submissions today made it difficult to distil particulars of his claims, however, the substance of his argument appears to be that he was prevented by his lawyer from presenting much of his case at the trial. The appellant submitted that the limits on the presentation of his case are evidenced by the fact that the entire trial took only around one hour. The court records indicate that the entire trial was recorded as lasting only 61 minutes. Whilst it is entirely possible that an efficient and appropriate trial was run in such a brief timeframe, such a short trial time provides at least some circumstantial evidence in support of the appellant’s claims.
The cost of a transcript for a one-hour trial is likely to be in the range of $500 to $600 (from the court’s providers). The appellant is unrepresented and earns only a modest income (he earned around $900 in the week in which he swore his affidavit, after two months without work as his car required repairs). He deposes to being behind in his rent and needing money for fuel and food. Whilst I am satisfied that, given time, he could be expected to meet the costs of the transcript, that would delay the appeal hearing which is listed for next month. The respondent (who is represented by a solicitor acting on a pro bono basis) is entitled to have the matter determined in a timely manner, particularly in light of the significant family violence outlined by the primary judge.
On balance, I am persuaded that the interests of justice demand that the court obtain a copy of the transcript for the use of the court and the parties at the appeal in this unusual matter. I will therefore make orders accordingly, and order that Order 6 and Order 7 of the orders of 19 June 2023 (requiring the appellant to provide the transcript) be discharged. The transcript will be available next week. The appeal is listed for hearing on 26 September 2023. In the circumstances, it is appropriate to extend the times provided for in other procedural orders of 19 June 2023, by extending the time for the appellant to comply with Order 13 and Order 14 until 1 September 2023 and the time for the respondent to comply with Order 15 until 15 September 2023.
As the outcome of the matter necessarily involves each party receiving property or the payment of money, there is no reason why the parties (or one of them) cannot ultimately meet the costs of the transcript, however, this question is best determined after the outcome of the appeal is known.
Whilst the appellant also sought an adjournment of the appeal to allow him to attempt to find a lawyer, I am not persuaded that an adjournment is likely to assist: he has put forward no evidence of any plans for locating a lawyer before the appeal hearing and has no funds available to him other than his future receipt of the benefit of the current property settlement order (if he is unsuccessful in the appeal). The stress of litigation is significant for all parties, and even more so in cases involving significant family violence. I am not persuaded that it is appropriate to delay the hearing of the appeal. I therefore refuse the appellant’s application to the extent that is seeks an adjournment of the appeal.
Directions have been made by the registrar for the filing of documents in the appeal. The appellant is required to comply with the directions if he wishes to rely upon the documents. If the appellant has difficulty filing documents electronically, he has the option of filing the physical documents at the registry. It is not open to the appellant to simply email documents to my associate or the registrar, as he says he did yesterday: such documents are not filed and will not be considered.
Lest the appellant be in any doubt as to what is required in his Summary of Argument, I annex to these reasons a copy of r 13.23 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) for his assistance.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Riethmuller. Associate:
Dated: 7 August 2023
ANNEXURE A
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (FAMILY LAW) RULES 2021 - RULE 13.23
Summary of argument and list of authorities
(1) Each party must file and serve a summary of argument and a list of authorities to be relied on:
(a) for the appellant--at least 28 days before the first day of the sittings in which the appeal is listed for hearing; or
(b) for the respondent and any independent children's lawyer--at least 7 days before the first day of the sittings in which the appeal is listed for hearing.
(2) For the purposes of subrule (1), a summary of argument must:
(a) set out each ground of appeal and, for each ground of appeal, a statement of the arguments setting out the points of law or fact and the authorities relied on (together with references to the relevant pages of the appeal book and transcript); and
(b) set out the orders sought (if they differ from the orders sought in the Notice of Appeal or any Amended Notice of Appeal); and
(c) not exceed 15 pages, unless leave to exceed that number has been given; and
(d) be easily legible, using a font size of at least 12 points and 1.5 line spacing; and
(e) have all paragraphs numbered consecutively; and
(f) be signed by the person who prepared the summary of argument; and
(g) include the signatory's name, email address, telephone number and document exchange number (if any) at which the signatory may be contacted.
(3) If a party intends to challenge any findings of fact, the summary of argument must:
(a) identify the error (including any failure to make a finding of fact); and
(b) identify the finding that the party contends should have been made; and
(c) state concisely why the finding, or failure to make a finding, is erroneous; and
(d) refer to the evidence to be relied on in support of the argument (including any reference to the relevant pages of the appeal book and transcript).
(4) Issues not identified in the summary of argument may not be advanced at the hearing of the appeal except with leave of the appeal court.
(5) For the purposes of subrule (1), a list of authorities must:
(a) be divided into 2 parts as follows:
(i) Part 1 must contain only those authorities that will be cited during the appeal;
(ii) Part 2 must contain those authorities that might be called for during the appeal, but that it is not intended to cite; and
(b) in relation to reported judgments:
(i) if the judgment is available in an authorised report series--cite the judgment as reported in that series; and
(ii) if the judgment is not available in an authorised report series--cite the judgment as reported where it is available; and
(iii) in any case--identify the relevant page or pages in the report; and
(c) in relation to unreported judgments:
(i) if a medium neutral citation is available--provide that citation and identify the relevant paragraph or paragraphs; and
(ii) if a medium neutral citation is not available--be accompanied by a copy of the judgment and identify, by page or paragraph number or numbers as appropriate, the relevant passage or passages.
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