Massalski & Riley

Case [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 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:

  1. 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”).

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Massalski & Riley [2022] FedCFamC1A 128
Case
[2022] FedCFamC1A 128
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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

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Legal Principle Established

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