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
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…
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- AGLC
- Matten & Munayallan [2023] FedCFamC1A 147
- Case
- [2023] FedCFamC1A 147
- Decision Date
CaseChat Overview and Summary
The appeal concerns the application of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to proceedings that were originally filed in the Supreme Court of New South Wales but later transferred to the Federal Circuit and Family Court of Australia. The appellant, who was not present at the hearing, contests the dismissal of his application to set aside certain orders made in his absence. The orders in question were issued in relation to proceedings involving a liquidator appointed to a corporation formerly controlled by the appellant, who was declared a vexatious litigant by the Supreme Court. The dispute includes applications for joinder, stay of existing orders, and injunctions against the liquidator dealing with specific funds, as well as requests to vary an interlocutory order made by the Supreme Court.
The central legal issues the court had to resolve were whether the appellant had a valid basis to appeal the dismissal of his application, and whether there were grounds to excuse his absence from the hearing. Additionally, the court had to consider the applicability of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to the proceedings, given the complex procedural history involving both the Supreme Court and the Federal Circuit and Family Court of Australia. The court also needed to evaluate the merits of the applications filed by the various parties, particularly the second application, which sought to vary an existing interlocutory order without adhering to the original undertakings.
In reaching its decision, the court considered the provisions of r 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which allows for the setting aside of dismissal orders made in the absence of a party. The court acknowledged the appellant’s right to apply for such relief but emphasised the necessity for the appellant to provide a satisfactory explanation for his absence and to demonstrate good reason to doubt the conclusions reached in his absence. The court further examined the procedural history and the nature of the applications, noting the complexity and the unconventional timing of the filings. Ultimately, the court determined that the appellant had not sufficiently justified his absence or provided compelling reasons to doubt the conclusions reached during the hearing. Consequently, the court dismissed the appeal.
The court made no further orders, as the appeal was dismissed on the basis that the appellant had not provided adequate justification for his absence or demonstrated sufficient grounds to doubt the conclusions reached in his absence.
The central legal issues the court had to resolve were whether the appellant had a valid basis to appeal the dismissal of his application, and whether there were grounds to excuse his absence from the hearing. Additionally, the court had to consider the applicability of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) to the proceedings, given the complex procedural history involving both the Supreme Court and the Federal Circuit and Family Court of Australia. The court also needed to evaluate the merits of the applications filed by the various parties, particularly the second application, which sought to vary an existing interlocutory order without adhering to the original undertakings.
In reaching its decision, the court considered the provisions of r 10.13(1)(a) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), which allows for the setting aside of dismissal orders made in the absence of a party. The court acknowledged the appellant’s right to apply for such relief but emphasised the necessity for the appellant to provide a satisfactory explanation for his absence and to demonstrate good reason to doubt the conclusions reached in his absence. The court further examined the procedural history and the nature of the applications, noting the complexity and the unconventional timing of the filings. Ultimately, the court determined that the appellant had not sufficiently justified his absence or provided compelling reasons to doubt the conclusions reached during the hearing. Consequently, the court dismissed the appeal.
The court made no further orders, as the appeal was dismissed on the basis that the appellant had not provided adequate justification for his absence or demonstrated sufficient grounds to doubt the conclusions reached in his absence.
Orders
Orders of the court
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Background
Background to the litigation
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.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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