KEDIS & KEDIS
[2014] FamCAFC 119
FAMILY COURT OF AUSTRALIA
| KEDIS & KEDIS | [2014] FamCAFC 119 |
| FAMILY LAW – APPEAL – NOTICE OF APPEAL – where the appellant seeks a further adjournment to file an amended Notice of Appeal containing proper grounds of appeal – where the adjournment is opposed – where the ground of appeal set out in the Notice of Appeal does not raise any appealable error of fact or law by the trial judge – where the oral application of the appellant for a further adjournment is dismissed – where the appeal is groundless – appeal struck out. FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the respondent seeks costs for the work involved in responding to the appeal and for the appearance of counsel and solicitor today – where the appellant opposes any order for costs – wife’s costs to be paid by the husband as agreed or in default of agreement as assessed. |
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| APPELLANT: | Mr Kedis | ||
| RESPONDENT: | Ms Kedis |
| FILE NUMBER: | MLC | 2787 | of | 2013 |
| APPEAL NUMBER: | SOA | 1 | of | 2014 |
| DATE DELIVERED: | 7 July 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 7 July 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 29 November 2013 |
| LOWER COURT MNC: | [2013] FCCA 1959 |
REPRESENTATION
| THE APPELLANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Ms Teicher |
SOLICITOR FOR THE RESPONDENT: | Jeanne Gorman |
Orders
The oral application for an adjournment made by the husband today be dismissed.
The Notice of Appeal filed by the husband on 23 December 2013 be struck out.
The husband pay to the wife her costs of and incidental to the Notice of Appeal filed on 23 December 2013 SAVE AND EXCEPT in relation to the appearance of the wife’s counsel and solicitor on 8 May 2014 and in respect of which an order for costs was made on that day, such costs to be as agreed and in default of agreement as assessed on a party/party basis.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kedis & Kedis has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 1 of 2014
File Number: MLC 2787 of 2013
| Mr Kedis |
Appellant
And
| Ms Kedis |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is an appeal filed by Mr Kedis (“the husband”) on 23 December 2013 against orders made by Judge Hartnett on 29 November 2013. A draft appeal index was filed, as is required under the Family Law Rules 2004 (Cth) (“the Rules”), on 20 January 2014.
The appeal is opposed by Ms Kedis (“the wife”).
The matter first came before this court on 26 March 2014 on a directions hearing. No-one appeared at that hearing; neither the husband, nor the wife, nor any legal representatives for either party. There was a suggestion at that time that the husband was in prison and was the reason for his non-attendance, and indeed that subsequently proved to be the case. In relation to the wife, there was correspondence, as I understand it, between the wife’s solicitors and the court, which indicated that the advice of counsel was that there was no need for the wife to appear. I will not dwell on that; I expressed my disquiet about that when the matter came back before me on 8 May 2014. In any event, as a result, I adjourned the matter to 8 May 2014.
On 8 May 2014 Mr King appeared for the husband and Ms Teicher appeared for the wife. I indicated to Mr King and to Ms Teicher that, having read the reasons for judgment of the trial judge and the Notice of Appeal, there was no basis for the Notice of Appeal to proceed given that it did not contain any proper grounds of appeal. In particular, it did not allege any appealable error of fact or law by the trial judge. On that basis the wife’s counsel sought that the Notice be dismissed; however, Mr King sought, on instructions, an adjournment for four weeks. He confirmed that the husband was in prison and that there was a sentencing hearing to take place the next day. The basis of the adjournment as put to me by Mr King was for the husband to be provided with targeted legal advice as to his appeal, and for a decision to be made as to whether the appeal was to proceed or not, and if it was to proceed, whether there would be amended grounds of appeal filed.
I granted the adjournment over the objections of the wife’s counsel, who then sought an order for costs, which I acceded to. Thus the orders I made on that day were for the husband, if so advised, to file and serve an amended Notice of Appeal by 19 June 2014, the Notice of Appeal be adjourned to today, 7 July 2014, and for costs.
I indicated, and noted on my order, that in the event that no amended Notice of Appeal was filed in accordance with the orders of 8 May 2014, it was proposed to make an order dismissing the Notice of Appeal filed on 23 December 2014 on the adjourned hearing date namely, today.
It is apparent that no amended Notice of Appeal has been filed, and the only document that has been filed is a Notice of Ceasing to Act, filed on 25 June 2014, by the husband’s solicitors.
Today, the husband is still in prison and he has attended by telephone. The wife is again represented by counsel.
Mr King has also appeared today, he says, as amicus curiae, and when challenged about that by me effectively he has indicated that he is here to assist the court, if need be. Given that neither he nor his firm now act for the husband, I have conducted the hearing directly with the husband on the basis of him appearing in person, without legal representation.
However, during the hearing Mr King indicated to me that he would like to speak with the husband and I understood that to be on the basis of whether
Mr King and/or his firm would be re-instructed to act for the husband. In any event there was an adjournment for that purpose and we have now resumed with the husband continuing to be without legal representation, and I have again proceeded on that basis.
As the husband is without legal representation I have given him the opportunity to say what he wanted to say to me about his Notice of Appeal. What he has said is that he wants an adjournment and an opportunity to pursue this matter; he says that he has evidence that the wife committed perjury and he wants to present that evidence. That comes as no surprise to me as that is what the husband put in his Notice of Appeal as his one ground of appeal. That ground of appeal reads as follows:
1.I propose to appeal the orders evidence that was not presented for consideration during the course of the trial. Further written proof and recordings were not submitted by the father’s previous representatives that have biased the consideration when the final orders were handed down, which was crucial to the whole spectrum for a different outcome. The proposed orders were based on discretion of evidence presented with omissions of that evidence.
It can readily be seen though that that is not a proper ground of appeal and does not, to repeat, raise any appealable error of fact or law by the trial judge.
Given what the husband has put to me in oral submissions today, which is a repeat of the complaint that appeared in his Notice of Appeal, I am concerned as to what has indeed happened in the adjourned period; the specific purpose of that adjournment was for the husband to be provided with advice about the appeal. In that regard the husband suggests that he has not been provided with that advice. However, that is not a matter for me to enquire into; it is a matter between the husband and his solicitors. To repeat though, I would be concerned if having adjourned the matter specifically for that purpose that has not happened. In any event, as I say, that is not my concern and does not, will not, and can not inform any decision that I make today.
I proceed on the basis that the Notice of Appeal that is before me is the one filed on 23 December 2013. There is no amended Notice of Appeal, and I have now set out the one and only ground of appeal, which to repeat, does not raise any appealable error of law or fact by the trial judge.
Thus, I need to determine whether I will grant the further adjournment sought by the husband, or dismiss the Notice of Appeal or, as I have raised, strike out the Notice of Appeal today.
Ms Teicher for the wife seeks that the Notice of appeal be dismissed.
I am not disposed to grant a further adjournment. The husband has had the opportunity to amend his Notice of Appeal, and he has not done so, and I am not prepared to allow this matter to continue any longer.
I therefore propose to dismiss the oral application for an adjournment made by the husband today.
In terms then of what I do with the Notice of Appeal. It is a situation where the Notice of Appeal is groundless, there is no proper ground of appeal. I take into account though that the husband who prepared the Notice of Appeal was without legal representation, and in my view the appropriate course is to strike out the Notice of Appeal.
I now have before me an application for costs on behalf of the wife.
The husband opposes that application. He says that he has no documents with him and he is not in a position to make any submissions about it. I gather from him that what he is concerned about is not whether there should be an order for costs, but rather what has taken some time in court to try and sort out, namely, what the actual work done was, for which costs are sought. I attempted to embark upon that process with the wife’s counsel but in the end result it became an impossible task, and as I said, the way for that to have been conducted is for a Bill of Costs to be prepared beforehand, and to be provided to this court when the application for costs was made. I am simply not prepared to sit in court and work through item by item, or even category by category, as I tried to suggest as a way of getting through it, at the end of the day. In any event, that is what I understand the husband is concerned about, as I was. He wants the opportunity to consider the detail of the application for costs.
Ms Teicher has laid out some broad parameters of what the costs might be, for example, seeking the fees for herself and her instructing solicitor for the appearance today, namely, $1080 for counsel, and $375 for the solicitor. In addition what is sought are the costs of, in effect, responding to the appeal, commencing in January 2014. I am told that there are various items of correspondence and annexures which have been perused, and of course, the filing of a Notice of Address for Service.
I have some concerns as to the basis on which costs should be ordered in relation to those matters, but I am going to leave that to agreement between the parties if that can be reached, or if not, to an assessor.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the
ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 7 July 2014.
Associate:
Date: 8 July 2014
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