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Massalski & Riley

Massalski & Riley

Case [2022] FedCFamC1A 128 15 August 2022

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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 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
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”).

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 Massalski & Riley

Details

AGLC: Massalski & Riley [2022] FedCFamC1A 128
Case: [2022] FedCFamC1A 128
Decision Date

CaseChat Overview and Summary

In the matter of Massalski & Riley, the applicant, Ms Massalski, sought an extension of time to review orders made by an appeal judicial registrar in proceedings between her and Mr Riley, the respondent. The appeal judicial registrar had made orders that required the applicant to pay $30,000 as security for the respondent's costs of appeal, with the appeal being stayed if the applicant failed to comply. The applicant did not provide the security, and the appeal was subsequently dismissed. The appeal judicial registrar's orders were made in the context of ongoing litigation between the parties, including an appeal that was dismissed in 2021.

The legal issues before the court were whether the applicant's Application in an Appeal, filed over two and a half months after the orders were made, should be granted and, if so, whether the costs should be taxed or fixed. The court considered the history of the proceedings, the conduct of the parties, and the consequences of granting or refusing the application. The applicant had not provided any explanation for the delay in bringing the review applications, and the appeal had no prospects of success.

The court found that the applicant's grievances and delays did not justify an extension of time for the review application. The appeal judicial registrar's orders were appropriate, given the history of the litigation, the outstanding costs orders, and the lack of prospects of success on the appeal. The court also noted that the applicant had two outstanding contempt applications dismissed on 5 August 2022, which did not affect the costs orders. Therefore, the court dismissed the application for an extension of time and ordered the applicant to pay the respondent's costs, fixed in the sum of $8,000.

Orders