Matten & Munayallan (No 2)
[2023] FedCFamC1A 170
•6 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Matten & Munayallan (No 2) [2023] FedCFamC1A 170
Appeal from: Scott & Munayallan (No 12) [2023] FedCFamC1F 665 Appeal number: NAA 217 of 2023 File number: SYC 59 of 2010 Judgment of: AUSTIN J Date of judgment: 6 October 2023 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Where the applicant seeks that orders made in his absence dismissing his appeal be set aside – Where the applicant could not properly explain his absence from the hearing or how the orders pronounced that day were wrongly made – Application dismissed. Legislation: Family Law Act 1975 (Cth) Pt VIII
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pt 5.3, rr 10.13, 10.14, 13.38
Cases cited: Matten & Munayallan [2023] FedCFamC1A 147 Number of paragraphs: 26 Date of hearing: 6 October 2023 Place: Newcastle The Applicant: Litigant in person The First Respondent: Litigant in person (did not participate) The Second Respondent: Litigant in person (did not participate) ORDERS
NAA 217 of 2023
SYC 59 of 2010FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR MATTEN
Applicant
AND: MS MUNAYALLAN
First Respondent
MR SCOTT
Second Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
6 OCTOBER 2023
THE COURT ORDERS THAT:
1.The Amended Application in an Appeal filed on 4 October 2023 is dismissed.
2.The applicant’s ancillary application to stay the orders made on 11 August 2023 is dismissed.
3.The applicant’s ancillary application to stay the proceedings comprising suit number SYC 59 of 2010 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 & Munayllan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
On 1 September 2023, orders were made to summarily dismiss the applicant’s application for leave to appeal in Appeal No. NAA 216/2023 and his appeal in Appeal No. NAA 217/2023, for which ex tempore reasons were delivered (Matten & Munayallan [2023] FedCFamC1A 147). Familiarity with such reasons will aid comprehension of the dismissal of the further misguided applications now made by the applicant within the second of those two appeal proceedings.
The applicant did not appear at the former hearing on 1 September 2023 – at least until after both judgments had been pronounced and the ex tempore reasons for the two judgments were already in the course of delivery.
On 13 September 2023, the applicant filed an Application in an Appeal seeking this relief:
1.Pursuant to Rules 10.13, 10.14 set-a-side orders/judgment made on the 1 September 2023 in Proceeding No: NAA 217/2023 until.
1.The amended notice of appeal annexure to this application is allowed to be filed.
2. Adduce Fresh Evidence.
3.[The applicant] or [another named person] to be appointed as legal guardian for [the applicant’s mother].
(As per the original)
The content of the Application disclosed the applicant wanted the application determined in the parties’ absence pursuant to r 13.38 and Pt 5.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), but the application was instead listed for hearing in open court on 6 October 2023 to give the applicant the opportunity to be heard – an opportunity he spurned on 1 September 2023.
On 4 October 2023, the applicant filed an Amended Application in an Appeal seeking this amended relief:
1.Pursuant to Rules 10.13, 10.14 set-a-side orders/judgment made on the 1 September 2023 in Proceeding No: NAA217/2023.
2.The amended notice of appeal annexure to this application is allowed to be filed.
3.Adduce Fresh Evidence.
4.[The applicant] or [another named person] to be appointed as legal guardian for [the applicant’s mother] in this appeal. ([The other named person] has been previously appointed as Tutor in the Supreme Court of NSW and holds Juris Doctor JD, Master of Laws)
Note;
5.If the appeal is allowed, an order will be sought Pursuant to Rule 3.09 leave is sought for [the applicant] (sole director) of [CC Pty Ltd] carry on the proceedings.
6. This application to be heard in Chambers on the papers on the 6 October 2023.
(As per the original)
As can be seen, the amended form of relief is substantially the same as before, but with an emphasis placed upon the application being determined in chambers on the papers.
Regardless, the hearing date on 6 October 2023 was not vacated and the applicant appeared by telephone. He was permitted to rely upon written submissions and annexures, unfiled but forwarded by email (Exhibit A), but otherwise chose to make few oral submissions. His written and supplementary oral submissions had no apparent relevance to the application under consideration. Rather, they were directed to errors he alleged had been made by the primary judge at first instance.
The applicant filed two affidavits simultaneously with the Application in an Appeal and a third affidavit with the Amended Application in an Appeal.
The first affidavit simply deposed to the applicant’s illness on 1 September 2023, supposedly to explain his belated electronic attendance at Court that day, and annexed a medical certificate.
The second affidavit comprises 688 pages, the content of which ostensibly seems to have no relevance to either the validity of the orders which were the subject of the second appeal, or the applications now brought in respect of it.
The second affidavit begins with a statement of the applicant’s intention to seek a “stay of the proceedings or orders dated 11 August 2023”, which were the orders made by the primary judge in the original proceedings under challenge in the second appeal.
Apparently, the applicant wants those orders stayed pending the determination of appeals which are said to be still pending in both the Supreme Court of NSW and the High Court of Australia. The applicant deposed this:
2.Appeal has been filed and served against the orders made on the 11 August 2023. An Appeal is still in progress in the Supreme Court of NSW 2023 and High Court about the authentication of the appointment of the liquidator. All these three appeals have been served to this court and annexure to this affidavit. Annexure “A”.
(Second affidavit of the applicant filed 13 September 2023) (As per the original)
However, according to the reasons delivered by the primary judge, appeals brought by the applicant and others in the NSW Court of Appeal have been dismissed (at [244], [251], [264], [266], [272], [277], [283]–[286], [289] and [291]). There is neither evidence of any outstanding appeal before another intermediate appellate court nor of any application for special leave to appeal still pending before the High Court.
The third affidavit contains identical text to the first affidavit but, aside from the same medical certificate, annexes over 60 pages of additional documents which are unexplained in the text of the affidavit, comprising:
(a)a lengthy draft Amended Notice of Appeal in relation to the second appeal, which does not address the deficiencies of the appeal which were identified when the appeal was summarily dismissed (Matten & Munayallan at [35]–[46]);
(b)a draft Amended Notice of Appeal in relation to the first appeal, which is irrelevant to this application concerning only the second appeal;
(c)the reasons for judgment delivered by the primary judge in relation orders which were the subject of the first appeal, which is similarly irrelevant to this application; and
(d)a document filed in the Supreme Court of NSW in January 2019 in a suit to which the applicant was not a party.
None of those documents is supportive of the relief now sought by the applicant.
In the reasons for judgment given for the earlier summary dismissal of the two appeal proceedings in this jurisdiction, in view of the applicant’s absence from the hearing, this observation was made:
6.The [applicant] 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.
Evidently, the application now made represents the applicant’s attempt to avail of that remedy in respect of the second appeal proceeding.
In view of the applicant’s absence when the dismissal orders were made on 1 September 2023, it is only r 10.13(1)(a) which is presently relevant. It provides:
(1) The court may at any time vary or set aside an order, if:
(a) it was made in the absence of a party; …
Rule 10.13 concerns the variation or setting aside of orders, whereas r 10.14 concerns the variation of reasons for judgment. The latter rule is irrelevant because the ex tempore reasons delivered for the orders made on 1 September 2023 say what they mean and mean what they say.
As was then foreshadowed, to invoke r 10.13(1)(a), the applicant must not only satisfactorily explain his absence from the hearing but also explain how the conclusions reached about the incompetence of the two appeals were wrong. The Rules permit, but do not oblige, the Court to set aside orders made in a party’s absence. Orders need not be varied just because a party was unable to appear when, irrespective, the orders were correctly made.
The applicant has neither properly explained his absence from the hearing on 1 September 2023 nor how the orders pronounced that day in his absence were wrongly made.
The applicant swears he was ill on 1 September 2023. He might have been, but his illness did not preclude his electronic appearance at Court, as proven by his belated telephone attendance. He simply failed to attend the hearing on time. It was virtually complete by the time he established his connection via the contact details provided to him. The subsequently acquired medical certificate attached to his affidavit, which unhelpfully asserts the applicant was “unfit to continue his usual occupation” on 1 September 2023, does not excuse his failure to attend the hearing on time when he was demonstrably fit enough to attend by telephone.
The applicant makes no attempt at all to explain why the decision to summarily dismiss the second appeal was wrongly reached. As explained by the reasons delivered at the time, the applicant is bereft of standing to contest the particular orders he identified, as he was not affected by such orders made by the primary judge on 11 August 2023 between others.
Given the incompetence of the appeal by reason of the applicant’s lack of standing to prosecute it, there is no scope for the grant of relief he now seeks, which is permission to file an amended appeal, permission for him to adduce further evidence, the appointment of him (or someone else) as a “legal guardian” for another person who was not even a party to the appeal, or for the applicant to pursue any proceeding in the original or appellate jurisdiction of this Court on behalf of CC Pty Ltd.
The Amended Application in an Appeal is dismissed.
Since the orders made by the primary judge on 11 August 2023 to finally determine the spouses’ financial cause under Pt VIII of the Family Law Act 1975 (Cth) are not open to challenge by the applicant, the ancillary applications within his second affidavit to stay either the orders or the original proceedings (which are already complete) are also dismissed for incompetence.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 6 October 2023
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