Matten & Munayallan (No 3)
[2023] FedCFamC1A 173
•12 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Matten & Munayallan (No 3) [2023] FedCFamC1A 173
Appeal from: Scott & Munayallan (No 11) [2023] FedCFamC1F 601 Appeal number: NAA 216 of 2023 File number: SYC 59 of 2010 Judgment of: AUSTIN J Date of judgment: 12 October 2023 Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – Where the applicant seeks that orders made in his absence dismissing his application for leave to appeal be set aside – Where the applicant did not properly explain his absence from the hearing – Where the applicant did not properly explain how the orders pronounced in his absence were wrongly made – Application dismissed. Legislation: 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: 20 Date of hearing: Determined in chambers on the papers 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 216 of 2023
SYC 59 of 2010FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MATTEN
Applicant
AND: MS MUNAYALLAN
First Respondent
MR SCOTT
Second Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
12 OCTOBER 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 4 October 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 (No 3) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN 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 application now made by the applicant within the first 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 oral delivery.
In the reasons for judgment given for the summary dismissal of the two appeal proceedings, 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.
The application now made by the applicant represents his attempt to avail of that remedy in respect of the first appeal proceeding.
The Application in an Appeal filed on 4 October 2023 seeks this relief:
1.Pursuant to Rules 10.13, 10.14 set-a-side orders/judgment made on the 1 September 2023 in Proceeding No: NAA216/2023.
Note if the above order is obtained, the following orders will be sought;
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.
The content of the Application plainly discloses the applicant wanted the application determined on the papers in chambers 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”). The applicant orally confirmed, when appearing by telephone in relation to other proceedings on 6 October 2023, his request for this application to be determined in chambers on the papers in the parties’ absence, which request is granted.
However, as an indulgence, the applicant was granted leave to file a further affidavit by 11 October 2023 to supplement the affidavit he filed contemporaneously with the application. The applicant therefore relied upon his two affidavits filed on 4 and 11 October 2023.
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. A draft Amended Notice of Appeal is also annexed, but the content of it does not address the deficiencies of the proposed appeal as were identified when the application for leave to appeal was summarily dismissed (Matten & Munayallan at [24]–[34]). The other annexed documents are copies of the primary judge’s reasons for judgment delivered on 20 July 2023.
The second affidavit (comprising 61 pages), sworn or affirmed on 11 October 2023, begins with the statement that it “has not been completed” and asks for another 48 hours within which to file a “supplementary affidavit”. The request is refused.
Relevantly, the second affidavit confirms the applicant’s illness on 1 September 2023 and annexes these documents:
(a)an application lodged by the applicant with the High Court of Australia on 15 August 2023 seeking special leave to appeal from a judgment of the NSW Court of Appeal delivered [in August 2023]; and
(b)an unsealed affidavit sworn on 27 March 2023 by an accountant, engaged by the applicant, concerning the solvency of a corporation, apparently intended for use in proceedings before the Federal Court of Australia.
Self-evidently, the intended appeal to the High Court from the judgment of the NSW Court of Appeal has nothing to do with these proceedings, even if common parties might be involved. Nor does the affidavit prepared for intended use in other proceedings before the Federal Court of Australia have anything to do with the current application.
The applicant also tried to re-file an affidavit he swore or affirmed more than a month ago on 1 September 2023, but it is irrelevant and can be ignored because it relates to the orders made by the primary judge in the original proceedings on 11 August 2023 to finally resolve the matrimonial cause (which orders were the subject of the second appeal dismissed on 1 September 2023). This current application seeks to revive the first appeal (also dismissed on 1 September 2023) which relates to only interlocutory orders made in those same proceedings by the primary judge on 20 July 2023.
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 need no rectification.
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 so as to warrant the revival of his application for leave to appeal in the first appeal (NAA 216/2023).
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 first 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 first appeal proceeding was wrong. As explained by the reasons delivered at the time (Matten & Munayallan at [24]–[34]), the applicant is bereft of standing to contest some of the orders from which he sought leave to appeal and, in respect of those orders in which he did have an interest, did not demonstrate the decision at first instance is attended by sufficient doubt to warrant appellate scrutiny or that substantial injustice would result if leave were refused, supposing the decision at first instance to be wrong. Nothing contained within the applicant’s two affidavits filed on 4 and 11 October 2023 persuades otherwise.
Given the incompetence of the anterior application for leave to appeal, 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 first appeal proceeding, or for the applicant to pursue any proceeding in the original or appellate jurisdiction of this Court on behalf of CC Pty Ltd.
The Application in an Appeal is dismissed.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 12 October 2023
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