KHADEM & DABIRI - [2020] FamCAFC 321

FAMILY COURT OF AUSTRALIA

KHADEM & DABIRI

[2020] FamCAFC 321

FAMILY LAW – APPEAL – Where the appellant appeals an order dismissing an application – Where that application sought relief in relation to r 15.31 of the Federal Circuit Court Rules 2001 (Cth) – Where the appeal was conceded – Where this Court is satisfied that the primary judge erred in law – Appeal allowed – Costs certificates granted to each party.

FAMILY LAW – LEAVE TO APPEAL – Errors of principle – Where orders effected substantial injustice – Leave to appeal granted.

Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9

Federal Circuit Court Rules 2001 (Cth) rr 6.11, 15.31

Hydron Pty Ltd v Harous [2005] SASC 74
Rapid Metal Developments (Australia) Pty Ltd v Griffiths [2005] QDC 48
Rutherford and Rutherford (1991) FLC 92-255; [1991] FamCA 68
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

APPELLANT:

Mr Khadem

RESPONDENT:

Ms Dabiri

FILE NUMBER:

BRC

5590

2018

APPEAL NUMBER:

NOA

2020

DATE DELIVERED:

16 December 2020

PLACE DELIVERED:

Cairns

PLACE HEARD:

Brisbane (via video link)

JUDGMENT OF:

Strickland, Kent & Tree JJ

HEARING DATE:

8 December 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

9 September 2020

LOWER COURT MNC:

[2020] FCCA 2643

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Galloway with Ms Meyers-Young

SOLICITOR FOR THE APPELLANT:

AMG Law Firm

COUNSEL FOR THE RESPONDENT:

Mr Alexander with Mr Bolovan

SOLICITOR FOR THE RESPONDENT:

Smart Legal

Orders made on 8 December 2020

BY CONSENT IT IS ORDERED THAT:

Leave to appeal be granted.
The appeal be allowed.
The order made by the primary judge on 9 September 2020 be set aside.

AND IT IS FURTHER ORDERED THAT:

The Court grants to the appellant husband a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by him in relation to the appeal.
The Court grants to the respondent wife a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by her in relation to the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Khadem & Dabiri has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to…

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 KHADEM & DABIRI

Details

AGLC: KHADEM & DABIRI [2020] FamCAFC 321
Case: [2020] FamCAFC 321
Decision Date: 16 December 2020

CaseChat Overview and Summary

In the matter of Khadem & Dabiri, the appellant, Mr. Khadem, sought an appeal against a decision made by the primary judge dismissing his application related to Rule 15.31 of the Federal Circuit Court Rules 2001. The appeal was conceded, and the Court found that the primary judge had erred in law. The Court allowed the appeal and granted costs certificates to both parties. The case revolved around the proper procedures and timelines for disputing facts under Rule 15.31 of the FCCR. Specifically, the appellant argued that his affidavit, which was filed and served within the 14-day period, was sufficient to dispute the facts outlined in the Notice to Admit Facts. The primary judge, however, failed to consider this affidavit, leading to an error in law.

The legal issues in this case centred on the interpretation and application of Rule 15.31, specifically the adequacy of the appellant's response to the Notice to Admit Facts, and whether the primary judge's failure to consider the appellant's affidavit constituted an error of law. The Court held that the appellant's affidavit was indeed a sufficient response and that the primary judge's omission to consider it was an error. The Court also highlighted the importance of providing proper notice when relying on deemed admissions to avoid wasting time and costs. The Court concluded that these errors resulted in a substantial injustice to the appellant, warranting an order for leave to appeal.

The Court allowed the appeal, set aside the primary judge's order, and granted costs certificates to both parties under the Federal Proceedings (Costs) Act 1981. The appellant was awarded a certificate indicating it would be appropriate for the Attorney-General to authorise a payment for his costs, while the respondent received a certificate for her costs incurred in relation to the appeal. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

Orders made on 8 December 2020

BY CONSENT IT IS ORDERED THAT:

1. Leave to appeal be granted.

2. The appeal be allowed.

3. The order made by the primary judge on 9 September 2020 be set aside.

AND IT IS FURTHER ORDERED THAT:

4. The Court grants to the appellant husband a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant husband in respect of the costs incurred by him in relation to the appeal.

5. The Court grants to the respondent wife a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent wife in respect of the costs incurred by her in relation to the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Khadem & Dabiri has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

Rule 15.31 of the FCCR deals with Notices to Admit Facts and disputes to them in the following terms:15.31 Notice to admit facts or documents (1)A party to a proceeding (the first party) may, by notice in accordance with the approved form, ask another party to admit, for the proceeding, the facts or documents specified in the notice.(2)If the other party does not, within 14 days, serve a notice on the first party disputing the fact or the authenticity of the document, the other party is taken to admit, for the proceeding only, the fact or the authenticity of the document.… It will be appreciated that the rule contemplates a prescribed form for the Notice to Admit Facts, but not the notice disputing the facts. Whilst we would not wish to encourage any practice of using affidavits as the vehicle for disputing facts the subject of a Notice to Admit Facts, nonetheless we are satisfied that, in this case, such comprised sufficient notice to the respondent,[1] and was given within the 14 day period. In any event, the paragraphs in the appellant’s trial affidavit were necessarily a significant relevant consideration in the determination of the appellant’s application, and by failing to have regard to them, the primary judge further erred in law.[1] cf.Hydron Pty Ltd v Harous [2005] SASC 74 at [20], where the notice disputing facts referred to previous affidavits, unlike here, where the affidavit was filed and served after the Notice to Admit Facts. Those were errors of principle effecting a substantial injustice to the appellant (Rutherford and Rutherford (1991) FLC 92-255) thereby justifying an order for leave to appeal. Before concluding, we must take this opportunity to remark upon the means by which the Notice to Admit Facts was provided to the appellant, and particularly its inclusion with 63 items of disclosure, and the failure of the email attaching it to draw attention to the notice in any way. In an analogous context dealing with a deemed admission arising from pleadings McGill SC DCJ in Rapid Metal Developments (Australia) Pty Ltd v Griffiths [2005] QDC 48 observed that it is good practice to provide notice that a deemed admission is to be relied on at trial, stating at [16] and [17]:16.In my opinion a party intending to rely on a deemed admission under r 189(2) [of the Uniform Civil Procedure Rules 1999] at a trial should always give reasonable notice of that intention to the other party. This is not a requirement of the rules, but in my opinion it is a requirement of good practice, calculated to avoid wasting time and costs, and in particular calculated to avoid wasting the court’s time as happened here. If proper notice is given, a party intending to make an application under r 189(3) can do so in the appropriate place and at the appropriate time, that is, before the applications court, and prior to the trial. It gives the party time to assemble the necessary material for the application before the hearing of it, instead of trying to do it on the run, and it also means that the outcome of the application is known prior to the trial, so that whatever the outcome the parties ought to be able to proceed with the trial on the date on which it is set down. 17.A defendant who is seriously interested in defending a claim ought to respond to a notice to admit, but sometimes things go wrong, and there is a failure properly to dispute facts which are genuinely in dispute. This was an example of that situation. In such a case, giving notice of intention to rely on the deemed admission a reasonable time prior to the trial would in my opinion be good practice for a plaintiff, and would avoid the waste of time which occurred in the present case.(Footnote omitted)

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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