Matten & Munayallan
[2023] FedCFamC1A 147
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Matten & Munayallan [2023] FedCFamC1A 147
Appeal from: Scott & Munayallan (No 10) [2023] FedCFamC1F 600
Scott & Munayallan (No 11) [2023] FedCFamC1F 601
Scott & Munayallan (No 12) [2023] FedCFamC1F 665
Appeal number(s): NAA 216 of 2023
NAA 217 of 2023File number: SYC 59 of 2010 Judgment of: AUSTIN J Date of judgment: 1 September 2023 Catchwords: FAMILY LAW – APPEAL – Property – Practice and procedure – Where the appellant was invited to show cause why the two appeals should not be summarily dismissed – Where the appellant failed to appear – Where the appeals are brought from separate suites of orders made in a financial cause between the respondent spouses – Where the appellant is a business associate of the husband – Where the first appeal lies from interlocutory orders made by the primary judge – Where the appellant lacks standing to prosecute part of the first appeal – Where the appellant needs the grant of leave to appeal in the remaining part of the first appeal – Where the appellant does not plead the facts upon which such leave is sought – Where the second appeal lies from orders made to finally determine the financial cause between the respondent spouses – Where the appellant has no right to challenge orders that do not affect him – Where the appeals are incompetent – Appeals summarily dismissed. Legislation: Family Law Act 1975 (Cth) Pt VIII
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 26, 28, 32
Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth) reg 4.02
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Commonwealth v Mullane (1961) 106 CLR 166; [1961] HCA 28
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Newett & Newett (No.2) (2021) FLC 94-051; [2021] FedCFamC1A 11
Panayotides & Panayotides (1997) FLC 92-733; [1996] FamCA 135
Scott & Munayallan (No.10) [2023] FedCFamC1F 600
Scott & Munayallan (No.11) [2023] FedCFamC1F 601
Scott & Munayallan (No.12) [2023] FedCFamC1F 665
Taylor v Taylor (1979) 143 CLR 1; [1979] HCA 38
Number of paragraphs: 49 Date of hearing: 1 September 2023 Place: Sydney The Appellant: Litigant in person (did not participate) The First Respondent: Litigant in person (did not participate) The Second Respondent: Litigant in person (did not participate) ORDERS
NAA 216 of 2023
NAA 217 of 2023
SYC 59 of 2010FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR MATTEN
Appellant
AND: MS MUNAYALLAN
First Respondent
MR SCOTT
Second Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
1 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.The Notice of Appeal filed in Appeal No. NAA 216/2023 is dismissed.
2.The Notice of Appeal filed in Appeal No. NAA 217/2023 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 the pseudonym Matten & Munayallan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
These two appeals are brought from separate suites of orders made in a financial cause between the respondent spouses under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”), finally determined on 11 August 2023.
The contents of the Notices of Appeal exposed certain impediments to success and so the appeals were listed for the appellant, who is apparently some form of business associate of the husband, to be heard as to why they (or any anterior application for leave to bring them) should not be summarily dismissed.
The appellant informally notified the Court by an email sent in the early hours of this morning that he was unwell, he did not intend to appear at court, and he would like an adjournment. He was notified by return email that he could appear electronically and was given the connection details for both internet and telephone, but the appellant failed to use either. He failed to appear at the hearing either electronically or in person.
It is difficult to conceive the appellant was so ill that he could not even appear electronically, leaving open the inference that his claim of illness and the need for an adjournment was a ruse to avoid confronting hard truths. Delay would not improve the appellant’s position, but it would cause prejudice to at least the wife who would wish to be free of continuing litigation.
The court is not required to delay the conduct of proceedings merely because a party declines to engage co-operatively or efficiently (see Allesch v Maunz (2000) 203 CLR 172 at 182–186 and 189–191; Taylor v Taylor (1979) 143 CLR 1 at 4). Even if the appellant willingly engaged and felt at his very best, he could not discharge the onus of proving the appeals enjoy reasonable prospects of success and so they are dismissed.
The appellant is at liberty to apply to set aside the dismissal orders made in his absence (r 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), though he will of course then need to explain his absence from the hearing to properly excuse it and demonstrate good reason to doubt the conclusions reached in his absence.
Background
There were numerous parties to the original proceedings under Pt VIII of the Act, one of whom was the liquidator (“the liquidator”) appointed to a corporation formerly controlled by the husband (I Pty Ltd), which was placed into liquidation by an order made by the Supreme Court of NSW (“the Supreme Court”) in January 2022.
Some, but apparently not all, of the parallel proceedings started in the Supreme Court were transferred by that court to the Federal Circuit and Family Court of Australia (Division 1) in October 2022 for determination in conjunction with the matrimonial proceedings.
In mid-May 2023, the Supreme Court declared the husband, the appellant, and several other corporations (one of which was CC Pty Ltd) to be vexatious litigants with respect to the liquidator.
On 8 May 2023, before that order was made in the Supreme Court, an Application in a Proceeding was filed in the Pt VIII proceedings seeking certain relief (“the first application”). The first application was filed by two applicants: Mr Hatem (supposedly as a shareholder, creditor and director of I Pty Ltd) and CC Pty Ltd.
The interlocutory relief sought comprised: Mr Hatem’s joinder to the Pt VIII proceedings; the stay of some existing orders; and the liquidator’s restraint by injunction from dealing with certain funds. Some other procedural orders were sought but they were incomprehensible.
It should be noted the first application was filed whilst final judgment in the Pt VIII proceedings was already reserved, the trial having been completed months before in February 2023. It can therefore be readily appreciated how, at the very least, the application to intervene in the Pt VIII proceedings entailed a unique blend of optimism and audacity.
On 6 July 2023, another Application in a Proceeding was filed in the Pt VIII proceedings (“the second application”). The second application was filed by multiple parties, including the appellant, CC Pty Ltd, two other corporations, and several other individuals (including the husband’s brother and mother).
The interlocutory relief sought in the second application, to the extent that its meaning can be properly discerned, was the variation of an interlocutory order made by the Supreme Court nearly a year before in mid-August 2022. That order was made on undertakings given to the Supreme Court by the appellant and numerous others. The application sought the excision of the undertaking from the text of the existing order. The intended purpose of the variation must have been the retention of the benefit afforded by the order, but without having to bear the burden of the undertakings to accrue the benefit, the mere statement of which also exposes the adventurous frivolity of this application.
The two applications were listed for hearing before the primary judge on 18 July 2023.
The interlocutory judgment was reserved and published two days later on 20 July 2023.
Each application was determined by a separate set of orders and a separate set of reasons for judgment. In precis, the primary judge summarily dismissed the first application (Scott & Munayallan (No.10) [2023] FedCFamC1F 600 (“Scott & Munayallan (No.10)”)), summarily dismissed the second application, and also dismissed the appellant’s oral application to be joined as an additional applicant to the first application (Scott & Munayallan (No.11) [2023] FedCFamC1F 601 (“Scott & Munayallan (No.11)”)).
The primary judge made these two sets of orders:
1.The Application in a Proceeding filed by [Mr Hatem] on 8 May 2023 is summarily dismissed.
2.There be no order as to costs.
(Scott & Munayallan (No.10))
1.The Application in a Proceeding filed by [the Appellant] and [CC Pty Ltd] on 6 July 2023 is summarily dismissed.
2.The oral application made by [the Appellant] to be joined to the Application in a Proceeding filed by [Mr Hatem] on 8 May 2023 is dismissed.
3.There be no order as to costs.
(Scott & Munayallan (No.11))
The appellant’s first appeal (NAA 216/2023) lies from all those orders.
Several weeks later, on 11 August 2023, the primary judge pronounced orders and delivered reasons to finally determine the Pt VIII proceedings (Scott & Munayallan (No.12) [2023] FedCFamC1F 665).
The final orders made by the primary judge, in large measure, facilitated completion of the liquidation of I Pty Ltd. In summary, her Honour declared I Pty Ltd to be the beneficial owner of certain property (Order 1), authorised the liquidator to reject proofs of debt received from certain persons and corporations (Order 2), authorised the liquidator to pay certain creditors of I Pty Ltd (Order 4), directed the liquidator to pay any surplus funds to the wife and her lawyers (Orders 6 and 7), fixed the liquidator’s remuneration for past work (Order 3), and enabled the liquidator to approach the court for further orders concerning remuneration (Order 5).
Additionally, the husband was ordered to pay the wife up to $3,566,956 (Orders 8 and 9), some prior liabilities of the husband to the wife, created by interlocutory orders, were declared to be judgment debts (Order 10), and the husband was ordered to pay the liquidator’s legal fees (Order 12). Otherwise, a host of other procedural orders were made (Orders 11, 13, 14, 15, 16, 17, 18 and 20), and any other outstanding applications were dismissed (Order 19).
The appellant’s second appeal (NAA 217/2023) lies from all those orders.
The first appeal
The first appeal purports to be an appeal from all five orders made by the primary judge on 20 July 2023.
The appellant has no interest at all in the two orders determining the first application brought by Mr Hatem and CC Pty Ltd and so thereby lacks standing to prosecute an appeal from them.
The three orders determining the second application had two material consequences: first, the summary dismissal of the application to vary the interlocutory Supreme Court order; and secondly, the dismissal of the appellant’s oral application to join in the first application brought by Mr Hatem and CC Pty Ltd. It is unnecessary to consider the third order as to costs, which was not adverse to the appellant.
Such orders, being of an interlocutory nature made in financial proceedings, require the grant of leave to appeal from them (s 28(3)(e)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCA Act”); reg 4.02(1)(a) of the Federal Court and Federal Circuit and Family Court Regulations 2022 (Cth)).
In the Notice of Appeal, the appellant acknowledges his need for the grant of leave to appeal from the orders made on 20 July 2023, but does not deign to plead the facts upon which such leave is sought.
In order to secure leave to appeal, the appellant must be able to demonstrate the decision at first instance is attended by sufficient doubt to warrant appellate scrutiny and, additionally, substantial injustice would result if leave were refused, supposing the decision at first instance to be wrong (Medlow & Medlow (2016) FLC 93-692 at [44]–[57]). The appellant could not demonstrate an arguable case on either count and so the application for leave to appeal should be summarily dismissed.
The primary judge’s summary dismissal of the application to vary the Supreme Court order made in mid-August 2022 (by relieving the appellant and his associates of the undertakings they gave to the Supreme Court as the foundation for the order) was not a decision attended by much, if any, doubt. The evidence adduced by the appellant in support of the application was to the effect that a lawyer proffered his undertaking to the Supreme Court without his consent. So far as can be discerned, neither the subject order nor the undertakings upon which it was premised were being breached and there was no obvious reason to vary the order (Scott & Munayallan (No.11) at [28] and [33]–[41]). Moreover, the dismissal of the variation application caused no injustice to the appellant at all since the subject order only continued to apply in its unamended form for another few weeks until final judgment was pronounced on 11 August 2023. Interlocutory orders do not survive the final determination of the cause of action. There is no injustice in now being unable to challenge a discharged order.
The decision to dismiss the appellant’s oral application to join in the first application brought by Mr Hatem and CC Pty Ltd is, similarly, not attended by any doubt as to its efficacy nor liable to cause the appellant any injustice, let alone substantial injustice. To the extent that the appellant’s application to join in prosecuting the first application was intended to facilitate his joinder as a party to the substantive proceedings, the dismissal decision is immune from appeal (s 26(2)(b)(i) of the FCFCA Act)). The application to join in the prosecution of the first application seeking the other forms of relief became superfluous once the first application was summarily dismissed, about which result neither Mr Hatem nor CC Pty Ltd now complain, though that is not to suggest that they should or could. The appellant lost nothing by being denied the chance to join in an application brought by others which was dismissed for lack of merit.
When one turns to consider the ostensible merit of the grounds of this appeal, to the extent they can be understood, they complain only of the refusal of an adjournment application, the primary judge’s bias, and that the decision was wrong.
The refusal of the appellant’s application for an adjournment of the hearing is not a decision from which an appeal permissibly lies (s 26(2)(b)(ii) of the FCFCA Act). As to the issue of bias, the appellant did not apply for the primary judge’s disqualification at the hearing, so the complaint relies entirely on the mistaken proposition that the adverse decision manifests the alleged bias. As has been observed many times, absent quite unusual circumstances which are not obvious here, an adverse decision is not evidence of judicial bias (Newett & Newett (No.2) (2021) FLC 94-051 at [54]–[80]). Otherwise, the grounds do not expose any intelligible reason why the decision was wrong.
The application for leave to bring the first appeal has no reasonable prospect of success and so should be summarily dismissed.
The second appeal
The second appeal purports to be an appeal from all orders made by the primary judge on 11 August 2023 to finally determine the Pt VIII proceedings.
The appellant was not a party to the substantive proceedings, though the primary judge mistakenly said he was in reasons which are pertinent to the first appeal (Scott & Munayallan (No.11) at [3] and [6]). The only point of him wishing to join in the first application brought by Mr Hatem and CC Pty Ltd was to secure his joinder to the substantive proceedings.
Nonetheless, despite not being a party, the appellant is still seized of the right to appeal, though only from orders which affect him (Panayotides & Panayotides (1997) FLC 92-733 at 83,888).
The only orders made by the primary judge which affect the appellant were these:
2.Pursuant to section 90-15(1) of Schedule 2 to the Corporations Act 2001 (Cth), the liquidator would be justified, and would otherwise be acting reasonably, in rejecting in full the formal proofs of debt or claims submitted by the following:
(a) [Ms L] dated 22 March 2022;
(b) [The husband’s mother] dated 22 March 2022;
(c) [The husband’s brother] dated 23 March 2022;
(d) [The appellant] on 23 March 2022;
(e) [P Pty Ltd] dated 23 March 2022; and
(f) [DD Pty Ltd] dated 23 March 2022.
…
14. Should any application be filed by any named party or any of the following:
(a) [The appellant];
(b) [Mr Hatem];
(c) [Ms L];
(d) [Mr L];
(e) [Ms AH];
(f) [Mr AT];
(g) [Ms HH];
(h) [Mr AU]; or
(i) [P Pty Ltd];
the application is to be listed before [the primary Judge], or should [the primary Judge] be unavailable, before another Justice of the Federal Circuit and Family Court of Australia (Division 1), and no named respondent is required to file any document unless ordered to do so by the Court.
…
16.Orders 14 and 15 do not operate in respect of any appeal lodged from these orders.
(Emphasis added)
Order 14(a) only directs how any application filed by one of the named persons or corporation is to be listed before the Court for consideration. The order is entirely procedural and does not determine any right enjoyed by the appellant. It does not therefore amount to a “judgment” from which an appeal validly lies under s 26(1) of the FCFCA Act (Commonwealth v Mullane (1961) 106 CLR 166 at 169).
Order 2(d) affects the appellant because it authorises the liquidator to reject the proof of debt lodged by him in the liquidation of I Pty Ltd and thereby deprives him of the right to recover the alleged debt. That is a judgment from which the appellant enjoys a right of appeal, though the appeal must still evince reasonable prospects of success to avoid its summary dismissal.
The appellant was one of many who submitted proofs of debt to the liquidator in relation to the liquidation of I Pty Ltd. In advance of the trial heard by the primary judge, in August 2022, the liquidator filed an Application in a Proceeding seeking orders authorising him to reject certain proofs of debt and to disburse available funds in the liquidation in certain ways.
That application merged in the final orders made by the primary judge, who explained that aspect of the judgment in this way:
THE PROOFS OF DEBT
428.The liquidator accepted there were valid creditors of [I Pty Ltd] as follows:
(1) Australian Taxation Office for $4,550.00;
(2) [Mr AV] for $500.00;
(3) [Mr AW] for $11,879.45;
(4) [AX Pty Ltd] for $4,443.59;
(5) Sydney Water for $5,071.02;
(6) [Suburb AY] Council for $418.88;
(7) Service NSW for $33,840.00; and
(8) [Suburb AZ] Strata Management for $29,895.93.
429.In relation to the remaining proofs of debt set out in Order 1 of the liquidator’s Application in a Proceeding filed 17 August 2022, no party who purportedly lodged the proof of debt came to Court to argue their respective claim against [I Pty Ltd] despite each party having been given notice by the liquidator on 2 December 2022 that this issue was to be heard at the hearing.
430.I have agreed that these proofs of debt be rejected by the liquidator.
…
433.[Lawyer] appeared on behalf of [the appellant] on the first day of the hearing seeking a stay. [The appellant] had lodged a proof of debt in respect of [I Pty Ltd], as had [DD Pty Ltd]; a company [the appellant] is the director. Neither he nor [lawyer] re-appeared at the hearing to press either proof of debt.
434.Additionally, neither [the appellant] nor [lawyer] pressed the Application in a Proceeding filed by [CC Pty Ltd] on 26 October 2022.
435.Further, [the appellant] and Ms [L] were subpoenaed to give evidence by an order of 29 September 2021 and were named in the trial directions of 17 November 2022. The liquidator gave notice to [the appellant] and Ms [L] of the hearing dates and they, along with [the husband’s brother] or [the husband’s mother], did not appear.
436.Accordingly, I will make Order 1 in the liquidator’s Application in a Proceeding filed 17 August 2022.
(Footnotes omitted)
Evidently, despite full awareness of the contest over the authenticity of the debt allegedly owed to him by I Pty Ltd and being afforded the opportunity to prove it, the appellant abstained from taking the opportunity to do so. He cannot now appeal on grounds which contend for error by the primary judge’s reliance upon the unchallenged evidence advanced by the liquidator to grant the relief sought by the liquidator.
However, it is apparent from the content of the Notice of Appeal that the appellant has no interest at all in contesting either Order 2(d) or Order 14(a). Rather, he seeks to challenge certain nominated substantive orders of the primary judge (Orders 4–9 and 17–19) in so far as they hinge upon, first, the declaration as to I Pty Ltd’s beneficial ownership of certain property (Order 1), and secondly, the order fixing the quantum of the liquidator’s remuneration in the sum of $734,220 (Order 3). The appellant has no right to challenge those orders as they do not affect him. The appellant did not assert any legal or equitable interest in the property declared to be beneficially owned by I Pty Ltd and, being bereft of any valid debt to prove in I Pty Ltd’s liquidation, cannot be heard to cavil with the quantum of the liquidator’s remuneration.
Yesterday (31 August 2023), the appellant attempted to file an unsigned Amended Notice of Appeal (dated 15 August 2023), but it does not improve his position. The document foreshadows an intention to expand the grounds of appeal, but without revealing them. No amount of additional grounds will cure the defects identified in this appeal.
The appeal is incompetent and is summarily dismissed.
Disposition
The Notice of Appeal filed in Appeal No. NAA 216/2023 is dismissed.
The Notice of Appeal filed in Appeal No. NAA 217/2023 is dismissed.
The power to make such orders is vested in a single judge exercising appellate jurisdiction (s 32(3)(b) and s 32(5) of the FCFCA Act).
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 1 September 2023
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