Kruger & Kruger (Deceased)

[2023] FedCFamC1A 47

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Kruger & Kruger (Deceased) [2023] FedCFamC1A 47

Appeal from:

Kruger & Kruger (Deceased) by his Legal Personal Representative Mr Gregory [2023] FCWA 31

Appeal number:

NAA 57 of 2023

File number:

PTW 3387 of 2012

Judgment of:

AUSTIN J

Date of judgment:

24 April 2023

Catchwords:

FAMILY LAW – APPEAL – Application in an Appeal – Expedition – Where the first respondent generally supported the second respondent’s Application – Where the appeal will be heard within the next two months and the respondents did not expect any more expedition than that – Where the expedition application is otiose – Where the appellants made an oral application for the appeal hearing to be delayed – Where the reason advanced for the application was the apparent unavailability of the appellants’ counsel of choice – Where the respondents resisted the appellants’ oral application – Oral application dismissed – Application in an Appeal dismissed.

Legislation:

Family Law Act 1975 (Cth) Pt VIII

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32

Federal Circuit and Family Court of Australia (Family Law) Rules 2021

Number of paragraphs:

10

Date of hearing:

24 April 2023

Place:

Newcastle (via video link)

The First Appellant:

Litigant in person

The Second Appellant:

Litigant in person

The Third Appellant:

Litigant in person

The First Respondent:

Litigant in person

Solicitor for the Second Respondent:

KD Legal

ORDERS

NAA 57 of 2023
PTW 3387 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS KRUGER

First Appellant

A PTY LTD

Second Appellant

B PTY LTD

Third Appellant

AND:

MR GREGORY (AS LEGAL PERSONAL REPRESENTATIVE FOR MR KRUGER - DECEASED)

First Respondent

C PTY LTD

Second Respondent

order made by:	AUSTIN J
DATE OF ORDER:	24 April 2023

THE COURT ORDERS THAT:

1.The appeal is listed for hearing before the Full Court at 11.30 am AEST on Wednesday 28 June 2023.

2.The time for the appellants’ compliance with Order 9 made by the appeal registrar on 17 April 2023 is extended by one week to Monday 22 May 2023.

3.The Application in an Appeal filed on 28 March 2023 is dismissed.

4.The appellants’ oral application to delay the appeal hearing is dismissed.

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).

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

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. This appeal lies from orders made by a judge of the Family Court of Western Australia on 13 March 2023 in a financial cause being contested under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) between the wife, the executor of the deceased husband, three respondent corporations, and an intervener. The appeal is brought by the wife and two of the corporations.

2. The subject orders effectively achieved two outcomes:

   (a)the dismissal of an application brought by the wife seeking relief against the second respondent, the purpose of which was to have a parcel of real property (“Property D”) owned by the second respondent declared to be property in which the spouses have an equitable interest and is held on trust for them, thereby making it amenable to property adjustment order between the spouses under Pt VIII of the Act (Order 1); and

   (b)the discharge of interlocutory orders made earlier in the proceedings in June 2014 and December 2019, which orders temporarily preserved the second respondent’s equity in Property D (Orders 2 and 3).

3. The appeal will be heard in due course by the Full Court, but an interlocutory application seeking an expedited hearing of the appeal must presently be considered by a single judge exercising appellate jurisdiction (ss 32(1)(b), 32(3) and 32(5) of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

4. The expedition application is made by the second respondent by way of an Application in an Appeal filed on 28 March 2023, supported by an affidavit filed by the director of the second respondent on the same date.

5. The reasons advanced for expedition in the affidavit are:

   5.At the time these proceedings were initiated in 2012, I was 83 years of age. I am now 94 years of age.

   6.I am a principal witness for [the second respondent] in theses [sic] proceedings and as I have stated in paragraph 1 above, I am the sole director and secretary of [the second respondent].

   7.Most of the relevant factual matters to this action occurred between the period from June 2005 and 2012, about 11 to 18 years ago.

   8.This matter has been in the Family Court for a period in excess of 10 years and taking into account my age and impact on my family an urgent listing is required to expedite a final resolution of the family dispute.

6. The appellants prevaricated about expedition of the appeal, but the other respondent generally supported the second respondent’s application.

7. The slow pace of the litigation over the last 10 years has no doubt frustrated the parties, but the appeal process will be much quicker. No evidence led in support of the expedition application allows for any inference to be drawn that the appeal need be heard any faster than within the next two months, within which period the appeal will be listed for hearing. The draft appeal book index was filed by the appellants within the time required under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) and so the appeal registrar has already made procedural orders to ensure the orderly progression of the appeal to hearing in late June 2023, about two weeks after the Summaries of Argument are due.

8. When asked, neither the second or first respondents expected any more expedition than that.

9. When the appellants were asked, they contended the appeal hearing in late June 2023 would be too soon for their liking. They resiled from their initial support of the expedition application and instead made an oral application for the appeal hearing to be delayed. The only reason advanced for delaying the hearing of the appeal is the apparent unavailability of the appellants’ counsel of choice until at least some time in July 2023. That is not sufficient reason for delaying the hearing and so the appellants’ application is refused, consonantly with the respondents’ resistance.

10. The appeal will be listed for hearing before the Full Court on 28 June 2023. The expedition application is otherwise otiose and is dismissed. The appellants’ application to delay the hearing is dismissed, though they will be given an extra week within which to file their Summary of Argument, to which extension the respondents consented.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       26 April 2023