Massalski & Riley
[2022] FedCFamC1A 128
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Massalski & Riley [2022] FedCFamC1A 128
Appeal from: Massalski & Riley [2022] FedCFamC1F 36 Appeal number(s): NAA 38 of 2022 File number(s): SYC 496 of 2015 Judgment of: ALDRIDGE J Date of judgment: 15 August 2022 Catchwords: FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Where the applicant seeks an extension of time to review the orders made by an appeal judicial registrar – Where the first set of orders provided for the appeal to be stayed if the applicant did not comply with a security for costs order – Where the second set of orders dismissed the appeal – No explanation for the delay in bringing the review applications – Lack of any prospects of success on the appeal – Application dismissed – Applicant to pay the costs of the respondent in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 79A, 90SN, 102QB
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32(3)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.31, 12.13, 13.40
Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Gallo v Dawson (1990) 93 ALR 479; [1990] HCA 30
Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27
Massalski & Riley [2019] FamCA 1013
Massalski & Riley (2021) FLC 94-047; [2021] FamCAFC 116
Massalski & Riley (No 2) [2021] FamCAFC 152
Number of paragraphs: 32 Date of hearing: 15 August 2022 Place: Sydney The Applicant: Litigant in person Counsel for the Respondent: Mr Fowler Solicitor for the Respondent: Russell Byrnes ORDERS
NAA 38 of 2022
SYC 496 of 2015FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS MASSALSKI
Applicant
AND: MR RILEY
Respondent
ORDER MADE BY:
ALDRIDGE J
DATE OF ORDER:
15 AUGUST 2022
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 19 July 2022 is dismissed.
2.The applicant pay the costs of the respondent fixed in the sum of $8,000.
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 the pseudonym Massalski & Riley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
ALDRIDGE J:
By an Application in an Appeal filed on 19 July 2022, Ms Massalski (“the applicant”) seeks an extension of time to review the orders made by an appeal judicial registrar in proceedings between her and Mr Riley (“the respondent”).
On 19 April 2022, the appeal judicial registrar made the following orders:
1.By 4.30pm (AEST) on Tuesday, 17 May 2022 [the applicant], pay by way of security for costs the sum of $30,000.00 to [the respondent’s] solicitor, …, Solicitor, to be held by him pending further order of the Court.
2.In the event that [the applicant] fails to comply with order 1 above, appeal NAA38/2022 is stayed pending further order of the Court.
3.The costs of the Application in an Appeal filed on 31 March 2022 are reserved and are to be considered as costs in the appeal.
The effect of these orders was that the appeal would be stayed if the applicant failed to pay $30,000 as security for the respondent’s costs of appeal. The applicant did not provide the security as ordered.
On 20 June 2022, the appeal judicial registrar dismissed the applicant’s appeal, pursuant to s 32(3)(f)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) and ordered her to pay the respondent’s costs fixed at the sum of $7,000.
The appeal judicial registrar’s orders came about in the following way. On 24 December 2019, McClelland DCJ made final property orders between the parties (Massalski & Riley [2019] FamCA 1013). Those orders were the subject of an appeal which was dismissed (Massalski & Riley (2021) FLC 94-047).
On 19 August 2021, the applicant was ordered to pay the respondent’s costs of the appeal, fixed in the sum of $30,000 (Massalski & Riley (No 2) [2021] FamCAFC 152).
On 10 August 2021, the applicant filed an Initiating Application seeking to set aside the property orders under s 79A of the Family Law Act 1975 (Cth) (“the Act”). The correct section is s 90SN of the Act, but nothing turns on that. On 4 February 2022, the primary judge summarily dismissed the applicant’s Initiating Application.
A Notice of Appeal was filed on 2 March 2022. This led to the application by the respondent for the provision of security for costs.
In his reasons for the orders requiring the provision of security for costs, the appeal judicial registrar found that:
(1)Although the applicant had failed to pay the respondent various costs she had been ordered to pay, she “has, or could readily put herself where she has, the means to comply with an order for security for costs” (at [85]);
(2)The appeal had very little prospects of success (at [91]);
(3)A costs order was therefore highly likely (at [92]);
(4)The appeal was brought mala fides because the applicant “has been using the processes of the Court with the ulterior motive of delaying the enforcement of orders with which she does not, and will likely never agree” (at [93]);
(5)An order for security would not stifle the appeal (at [100]); and
(6)The applicant owed the respondent approximately $369,828.03, consisting of costs pursuant to orders of the District Court of New South Wales, costs of the property proceedings which she was ordered to pay, costs of the unsuccessful proceedings cross-listed from the Supreme Court of Victoria, and the costs of the unsuccessful appeal (at [104] and [105]).
Although any rehearing from the appeal judicial registrar’s decision is by way of a hearing de novo on the evidence then before the Court and not an appeal, neither the applicant’s evidence nor submissions challenged any of these findings.
A party may apply for a review of an order made by an appeal judicial registrar relating to the conduct of an appeal by filing an Application in an Appeal within 21 days of the order (r 13.40 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)). That time may be extended (r 1.31 of the Rules).
Any application for review of the 19 April 2022 orders should have been filed on or before 10 May 2022. Accordingly, the delay in seeking the review is over two and a half months. Any application for review of the 20 June 2022 orders should have been filed on or before 11 July 2022. Accordingly, the delay in seeking the review was eight days.
The approach to applications of this kind was identified by McHugh J in Gallo & Dawson (1990) 93 ALR 479 at 480–481 as follows:
… The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the court or justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-4; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
“The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.”
However, where the right of appeal or review has passed, different considerations apply to circumstances where an appeal or review has been regularly commenced. In these cases, “the time for appealing will not be extended unless the proposed appeal has some prospects of success,” per Brennan CJ and McHugh J in Jackamarra & Krakouer (1998) 195 CLR 516 at [7].
The aim is to attempt to achieve justice between the parties. However, it is also relevant to take into account “the need to avoid disruptions in the court’s lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard” (Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 at [93]).
The affidavit in support of the application filed on 19 July 2022 gives an extensive history and discussion of the applicant’s various grievances since 4 August 2021 but offers no explanation as to why the Applications in the Appeal were not filed within the prescribed time, or why it has taken some two and a half months to seek to review the earlier of the appeal judicial registrar’s decisions.
Paragraph 3 of the affidavit refers to delay in the following terms:
3.Because there are third parties involved and these proceedings, and there was no clarity what actions will be taken by these parties, I was not able to file the application to seek a review of the decision made by the Registrar in relation to security for costs within time.
(Applicant’s affidavit filed on 19 July 2022, paragraph 3)
That is not an explanation of the delay or any reason why the review application was not brought within the prescribed time. The appeal that the applicant seeks to prosecute is against the summary dismissal of a claim brought by her under s 90SN of the Act to set aside the property orders made by McClelland DCJ of 24 December 2019. The primary judge identified the applicant’s contentions under that section as being:
·The respondent failed to disclose relevant documents;
·The respondent defaulted on the orders made by McClelland DCJ by “failing to comply with the Strata Management Act and Strata Schemes Development Plan” (at [93]);
·The property registered as Unit 1 was water damaged;
·The applicant had filed an application in the NSW Civil and Administrative Tribunal as to “non-compliance with the …Strata Schemes Management Act” (at [101]); and
·The respondent defaulted on the consent orders made by the Supreme Court of Victoria.
As to the last point, the primary judge found that the claim was not supported by any evidence.
As to the last four points, the primary judge found that they were incapable of enlivening s 90SN of the Act, even if established.
As to the first point, his Honour found that the claim was not supported by the evidence, and that indeed, the allegations of non-disclosure were fanciful. Further, a finding was made that the documents relied on by the applicant as being not disclosed were in fact available to her prior to the hearing before McClelland DCJ (at [90]).
The grounds of appeal do not address these findings. Rather, the grounds summarise the various grievances the applicant holds against the respondent, his solicitor and the court. The oral submissions of the applicant did not further assist. None of the grounds are capable of establishing error on the part of the primary judge. I am not otherwise satisfied that any appeal from the orders made on 4 February 2022 have any prospects of success.
Whilst any review, should an extension be granted, is entirely at large because the discretion is to be completely re-exercised on the evidence that is then before the Court, the applicant did not seek to identify any evidence which she would seek to rely on in such a re-exercise.
Given the history of this litigation, the outstanding costs orders and the lack of any prospects of success on the appeal, it is almost inevitable that an order would be made for the provision for security for costs. In other words, any review of the registrar’s decision for the provision of such security has either no or very limited prospects of success.
The applicant submitted that she has two outstanding contempt applications to be dealt with, as noted by the orders made by the primary judge on 4 February 2022. Therefore, she submits that the costs orders could not be relied upon or be taken into account on a re-exercise of the discretion. I do not see how that follows. Further and in any event, those applications were dismissed on 5 August 2022.
When these matters are taken into account with the extensive, unexplained delay of seeking the extension of the time, it is clearly in the interests of justice that the application for an extension of time to review the registrar’s decision on 19 April 2022 be dismissed.
The decision of the registrar of 20 June 2022 was inevitable, given the failure to provide the security that had been ordered, or to seek an extension of time to do so. Indeed, the attitude of the applicant at that time was that she was not prepared to do so. Accordingly, there is no prospect of a different outcome ensuing on a review of that decision. It follows, therefore, that the Application in an Appeal filed 19 July 2022 should be dismissed.
On 5 August 2022, Harper J made a suite of orders under s 102QB of the Act. Order 1 dismissed “all extant applications by [the applicant] in the Federal Circuit and Family Court of Australia”.
It is quite possible, therefore, that the present application has already been dismissed, pursuant to that order. It is not clear that his Honour was aware of the present application when that order was made, and if so, there must be a doubt as to whether or not his Honour intended that his order would extend to it. That issue would need consideration had I been prepared to allow the application. However, as that is not the case, I shall, for more abundant caution, make an order for dismissal of the application to the extent necessary.
An application has been made by the respondent for the payment of his costs, fixed in the sum of $17,226, which is the total of the solicitor’s costs of $10,626 and counsel’s fees of $6,600. That is an application for indemnity costs, but r 12.13(4) of the Rules was not complied with.
An order for costs in this matter is appropriate. The application has been wholly unsuccessful, and the applicant apparently has the means to meet the costs order, having the right to become the sole registered proprietor of the unencumbered lot and the property the subject of these proceedings. Given the history of this matter, it would be quite wrong to encourage further litigation by having the costs taxed.
Doing the best I can on the material before me, I do not see how a claim for $2,400 for a review of the rules relevant to the application and decisions could be justified. I also think there has been unnecessary duplication between a written outline and oral submissions. The applicant will pay the respondent’s costs, fixed in the sum of $8,000.
I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 17 August 2022
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