Kruger & Kruger (Deceased) (No 2)
[2023] FedCFamC1A 77
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Kruger & Kruger (Deceased) (No 2) [2023] FedCFamC1A 77
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: 18 May 2023 Catchwords: FAMILY LAW – APPEAL – Application to vacate the appeal hearing – Application based on unavailability of counsel – Where this is not a sufficient reason to delay the hearing – Where the appellants assertion the adjournment would not impose any material prejudice upon the respondents is rejected – Where the appellants seek an extension of time to file – Where the appellants did not file and serve the appeal book in time pursuant to procedural orders – Where the appeal would be deemed abandoned – Extension of time granted – Where the second respondent sought costs – Where the second respondent’s Response was not needed and the supporting affidavit added nothing of material value to the evidence – Application for costs dismissed – Application dismissed Legislation: Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 67, 68, 117
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.22
Number of paragraphs: 22 Date of hearing: 18 May 2023 Place: Newcastle Counsel for the First, Second and Third Appellants: Mr Dowding KC (direct brief) The First Respondent: Litigant in person Solicitor for the Second Respondent: KD Legal ORDERS
NAA 57 of 2023
PTW 3387 of 2012FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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:
18 May 2023
THE COURT ORDERS THAT:
1.The time for the appellants’ compliance with Order 5 made by the appeal registrar on 17 April 2023 is extended to Wednesday 17 May 2023.
2.The time for the appellants’ compliance with Order 7 made by the appeal registrar on 17 April 2023 is extended to Friday 19 May 2023.
3.The time for the appellants’ compliance with Order 9 made by the appeal registrar on 17 April 2023 is extended to Monday 29 May 2023.
4.Order 2 made on 24 April 2023 is discharged.
5.Otherwise:
(a)the Application in an Appeal filed on 8 May 2023 is dismissed; and
(b)the Response to an Application in an Appeal filed on 17 May 2023 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 Kruger & Kruger (Deceased) pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
On 24 April 2023, I ordered that this appeal be listed for hearing before the Full Court on 28 June 2023 (Kruger & Kruger (Deceased) [2023] FedCFamC1A 47).
That order necessarily entailed:
(a)dismissal of the second respondent’s application to expedite the hearing of the appeal because, when alerted to the hearing date that would be allocated in the ordinary course, the respondents did not expect any greater expedition (at [7]–[8]); and
(b)dismissal of the appellants’ application to delay the hearing of the appeal beyond the date upon which it would be ordinarily heard (at [9]).
The only reason then advanced by the appellants to delay the hearing of the appeal was the unavailability of the counsel of their choice until at least July 2023, which was not considered sufficient reason to delay the appeal, particularly in the face of the solid grounds upon which the second respondent sought expedition and opposed the hearing being delayed.
On 8 May 2023, the appellants filed an Application in an Appeal seeking almost exactly the same relief as was refused on 24 April 2023. They sought orders:
(a)vacating the appeal hearing on 28 June 2023 and re-listing the appeal for hearing on or after 31 August 2023; and
(b)extending the time within which the appellants must file the Appeal Book and the parties’ Summary of Argument to 17 July 2023.
The second respondent opposed the interlocutory relief sought by filing a Response to an Application in an Appeal filed on 17 May 2023. The first respondent also opposed the appellants’ application.
In support of their application, the appellants relied upon the two affidavits filed by the first appellant on 8 May 2023 and 15 May 2023.
The first appellant relevantly deposed this in her first affidavit:
1. I am one of the Appellants in this Appeal.
2. The other two Appellants are entities now controlled by me.
…
12.The decision of [the primary judge] was sent to the parties on 14 February this year and Orders were made on 13 March. That decision ultimately dismissed my application. That is the decision I seek to appeal.
Prejudice to me
13. I do not have any funds to meet the costs of solicitors or counsel.
14.My counsel from trial, [name], has advised that he is prepared to assist me with the appeal, but he cannot do so until late July as he has other matters in trial until then.
15.One of the lawyers who assisted me at trial, provided me some assistance with this application and affidavit. They have told me however that they do not have the capacity to represent me in the appeal, and in any event have almost no experience as counsel on appeal matters.
16.I have approached legal aid, but they have advised that my matter is "too advanced and too complicated' and is therefore "beyond [their] scope of assistance .... ".
…
19.Even if I had the funds or could find alternative counsel to assist me on a pro bono basis, there is no prospect that they could get across my matter within a few weeks.
…
21.I am not legally trained. I do not understand the basic legal principles much less the nuances of equitable arguments or the procedural rules of the Appeal Court.
…
23.I also want this matter dealt with promptly. That is why I initially consented to the appeal being expedited. I did not expect however that it would be listed for argument so quickly.
…
Prejudice to the respondents
…
26.I say that in the context of litigation that has been ongoing for over a decade, this does not impose any material prejudice to the Respondents.
(As per the original)
As can be seen, the appellants’ application was initially premised on the same reason as was advanced and rejected on 24 April 2023. The appellants allege they cannot secure legal representation for the hearing on 28 June 2023 and would prefer not to have to conduct the appeal themselves.
That is not sufficient reason to delay the hearing. The appealed orders were made on 13 March 2023, the appeal was filed on 16 March 2023 and, by the time of hearing on 28 June 2023, the appellants will have had nearly 15 weeks within which to prepare themselves.
It is difficult to accept the proposition that the appellants cannot secure legal representation for the appeal. According to the evidence, they have so far only checked the availability of the two lawyers who represented or “assisted” them at trial and unsuccessfully explored their grant of legal aid, though there is no evidence to suggest the appellants’ financial circumstances would qualify them for a grant of legal aid in any event – this being a financial cause. Two of the appellants are corporations, even if they are under the first appellant’s effective control. The selection of barristers and solicitors who could accept a retainer in the appeal must be much wider than the limited enquiries so far made by the first appellant. Indeed, she was able to retain different counsel to represent the appellants in respect of this application.
The first appellant’s assertion that a pro bono lawyer could not be competently ready for the hearing on 28 June 2023 is rejected. The hearing is six weeks hence and the appeal concerns a relatively narrow issue about the validity of the primary judge’s rejection of the first appellant’s assertion that she and the first respondent enjoy an equitable proprietary interest pursuant to doctrines of trust in a parcel of real property owned by the second respondent.
Even if the appellants cannot secure legal representation in time for the appeal hearing, they cannot expect the Court and the respondents to idly sit by and wait for them to acquire it. Sometimes there is no alternative but for appellants to present their own cases.
In her second affidavit, the first appellant deposed to her pre-occupation with other litigation as an additional reason for why the hearing should be delayed.
The second respondent filed an application in the Family Court of Western Australia seeking damages against the first appellant pursuant to an undertaking she gave to the Court in July 2014. It is not known when that proceeding will be heard.
The second respondent also recently commenced proceedings in the Supreme Court of Western Australia against the second and third appellants. The first appellant’s controlling interest in the second and third appellants means she is indirectly interested in that litigation. She is due to file a Defence to the claim within the next week or so, but once that is done it is not known when that proceeding will be heard.
That the appellants are busy attending to the prosecution and defence of multiple litigious disputes is beside the point. This appeal is due to be heard about six weeks hence. Logic suggests that preparation for it should be prioritised over other litigation which has only just started and may not be heard for quite some time.
The first appellant’s assertion that pushing back the appeal hearing would “not impose any material prejudice” upon the respondents is rejected. Such potential prejudice was the very reason the second respondent, with the first respondent’s support, sought expedition of the appeal in the first place. As the first appellant admits, the appellants initially consented to the expedition application, but recanted their support when informed the appeal hearing would be reached in late June 2023 in the ordinary course of events.
This Court is obliged to acquit its business pursuant to the overarching statutory purpose of finalising litigation as quickly, inexpensively and efficiently as possible, which purpose the parties must facilitate (s 67 and s 68 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)). For the reasons given on 24 April 2023, there was and still is very good reason to ensure this appeal is heard in a timely way on 28 June 2023. Conversely, no good reason was advanced by the appellants, then or now, to justify delaying the appeal hearing.
Under procedural orders made by the appeal registrar on 17 April 2023, the appellants were obliged to file and serve the appeal book in electronic format by 15 May 2023. They did not do so, in which event the appeal is deemed abandoned pursuant to Order 6 made on 17 April 2023 (which order replicates r 13.22 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)). The appellants filed the electronic appeal book two days late on 17 May 2023, so the procedural orders are retrospectively amended to give the appellants until that date to file the appeal book and avoid deemed abandonment of the appeal. The orders will also be amended to give the appellants a couple of more days within which to serve the appeal book in case that has not yet been done.
On 24 April 2023, the appellants were granted the indulgence of an extension of time to 22 May 2023 within which to file their Summary of Argument. That is now only several days ahead. To assist them, that time will be extended again, but only by a week to 29 May 2023.
Other than in those respects, to which extensions the respondents acceded, the appellants’ Application and the second respondent’s Response are dismissed.
The second respondent’s application for costs of $1,000 is dismissed. Barely any time was spent hearing and determining the dispute today. The second respondent’s Response was not needed and the supporting affidavit added nothing of material value to the evidence. No good reason was advanced for why s 117(1) of the Family Law Act 1975 (Cth) should not apply.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 18 May 2023
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