Na and Tiu
[2017] FamCAFC 264
•7 December 2017
FAMILY COURT OF AUSTRALIA
| NA & TIU | [2017] FamCAFC 264 |
| FAMILY LAW – APPEAL – Application to adjourn appeal hearing – Application based on unavailability of counsel – Consideration of prejudice to the respondent and other litigants if adjournment granted – Discussion of efficiencies made in the conduct of the work of the Full Court – Importance of rigorous case management to maintain the efficiency of the Appeal Division – Application dismissed – Applicant to pay respondent’s costs in a fixed sum. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Na |
| RESPONDENT: | Ms Tiu |
| FILE NUMBER: | SYC | 2315 | of | 2014 |
| APPEAL NUMBER: | EA | 55 | of | 2017 |
| DATE DELIVERED: | 7 December 2017 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Perth (via video link) |
| JUDGMENT OF: | Thackray J |
| HEARING DATE: | 7 December 2017 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 1 May 2017 |
| LOWER COURT MNC: | [2017] FamCA 282 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Winfield |
| SOLICITOR FOR THE APPLICANT: | Brighton Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Morahan |
| SOLICITOR FOR THE RESPONDENT: | Chen Shan Lawyers |
Orders
The application filed 4 December 2017 be dismissed.
The applicant pay the respondent’s costs of the application in the fixed sum of $800, payable within 28 days of the date hereof.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Na & Tiu has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 55 of 2017
File Number: SYC 2315 of 2014
| Mr Na |
Applicant
And
| Ms Tiu |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Before the Court today is the appellant’s application for the vacation of the appeal hearing in Sydney on Friday 15 December 2017, with a request that a new date be allocated after 14 March 2018 to suit senior counsel.
The appeal was filed on 26 May 2017, challenging an order made by Austin J on 1 May 2017.
A directions hearing was conducted on 19 July 2017, when standard orders were made, including for the filing of the appeal books by 30 August 2017, the filing of the appellant’s summary of argument by 27 September 2017 and the filing of the respondent’s summary of argument by 25 October 2017.
The Appeal Registrar noted that the estimated hearing time of the appeal was two to three hours. It was further noted that Ms Winfield was briefed to appear for the appellant, and Mr Morahan was briefed to appear for the respondent. I note they were the counsel who appeared before the primary judge.
Ms Winfield has advised this morning that due to her ill health over recent months, there was a delay in the filing of the appellant’s submissions, which were not filed until 25 October 2017. I also notice from the Appeal Registrar’s email of 6 November 2017 that a new timetable was laid down for the filing of the respondent’s submissions, and those were filed on 24 November 2017. It is further noted that the appellant’s submissions were signed by Ms Winfield.
In the email of 6 November 2017, the Appeal Registrar informed the solicitors that the appeal had been listed for 15 December 2017. The email said:
I note that the time estimate of the hearing given for this matter at the procedural hearing was 2-3 hours. Would you kindly consult with your Counsel and with the other party and advise me immediately if a substantially different view is formed about the duration of the hearing.
The email concluded by saying:
I advise that there are a large number of appeals awaiting a hearing date in the eastern region. Please inform me immediately if this appeal is settled, is withdrawn, the estimate of time changes or of anything else occurring that impacts on the list, so that another appeal awaiting hearing may be offered this hearing date.
Mr Wong, the appellant’s solicitor, has filed an affidavit in support of the adjournment in which he expressed surprise about the allocation of the “early hearing date”. I inquired of Ms Winfield as to why it was thought that this was an “early” date, and she referred to the timetable for submissions. But as I have indicated, those were originally to have been completed by 25 October 2017, allowing more than adequate time for the allocation of the matter in the December 2017 sittings. As I have also indicated to Ms Winfield, whilst in the past such a date might have been regarded as “early”, the expeditious way in which the work of the Full Court is now being undertaken in Sydney means that, in future, such a listing should not be regarded as “early”.
Mr Wong’s affidavit went on to explain that it was anticipated, notwithstanding what was said at the directions hearing about Ms Winfield appearing as counsel, that Mr Wheelhouse SC would lead Ms Winfield at the appeal hearing. I have sought to ascertain in hearing Ms Winfield’s submissions why senior counsel is required in a case that, on one view at least, is as straightforward as this matter. It has also been pointed out by Mr Morahan that no senior counsel has been involved to date. In response, Ms Winfield points to the fact that this is now a case on appeal, and that such matters have greater complexity. However, in my long experience of hearing appeals in the Sydney Registry, junior counsel or senior junior counsel routinely appear in appellate matters, including some of far greater complexity than the present matter.
In any event, it is the appellant’s desire to engage senior counsel, as is his right, but unfortunately it has transpired that Mr Wheelhouse is unavailable to take this brief on the date allocated, and would not be available to appear until after 15 March 2018. Nothing has been said to indicate that Mr Wheelhouse has undertaken any significant preparation, unlike Ms Winfield who is across the matter, having been counsel at trial, and also having prepared what I have described today as detailed and cogent submissions in support of the appeal.
Mr Wong’s affidavit went on to say, as has been confirmed by Ms Winfield today, that Ms Winfield has been “ill with flu” for the past few months. Although she has been able to prepare submissions for the appeal, she has not been able to attend to the matter in a “diligent manner”, and is only now recovering slowly from what seems to have been a debilitating condition.
On 28 November 2017, three weeks after the solicitors received notice of the hearing, and bearing in mind they had been asked to advise the Court very urgently of any change to the possible hearing date, the appellant’s solicitors wrote to the respondent’s solicitors seeking an adjournment, which was promptly rejected. It is also noted by the respondent that no reason was advanced for the adjournment other than that “senior counsel is unavailable until 14 March the earliest”. No mention was made of Ms Winfield’s illness.
Looking at the Notice of Appeal and at Austin J’s reasons, I can see that the issue at stake is whether the parties were in the six year de facto relationship that the appellant says existed, which would entitle him to pursue property proceedings. That issue was listed for a three day hearing before Austin J in March 2017, prior to delivery of judgment in May 2017. One can also see from his Honour’s reasons that there were four affidavits. I have also made enquiry and know that the entire transcript occupies only 332 pages.
At paragraph 6 of the reasons Austin J identified, in my view accurately, that what is required here is not the exercise of a judicial discretion, but rather a finding on one discrete issue. His Honour certainly saw the matter as being straightforward enough for him to dispose of and dismiss the application in a 10 page judgment of just 39 paragraphs.
There are only five grounds in the Notice of Appeal. Grounds 1, 2 and 3 are procedural fairness grounds. Ground 4 raises a discrete issue of what is said to be an error of law, and Ground 5 raises seven alleged erroneous findings of fact. As I have said, these grounds now find support in the form of the clear submissions of Ms Winfield. The submissions are meticulously supplemented by reference to the relevant pages of the appeal book and, in the case of the procedural fairness grounds, by meticulous reference to the transcript.
The appellant’s submissions have now been dealt with by the respondent in 14 pages in reply. True it is that there is an annexure to the submissions (which is essentially a chronology) but whoever represents the appellant at the hearing will now be in no doubt about the argument that needs to be met. Ms Winfield says today that this is going to be quite a difficult exercise because it is going to be necessary to check all of the facts set out in the chronology and to respond to the argument put by the respondent, but there is no obligation to do so in writing, and I am respectfully unable to see that this is quite as onerous an exercise as has been suggested by Ms Winfield.
In summary, it can be said that the issue raised on the appeal is a discrete issue, it requires consideration of relatively limited affidavit evidence, and it requires consideration of a transcript of a trial that lasted only three days. I also note again the benefit anyone picking up this brief would have of reading Ms Winfield’s careful analysis of the relevant parts of the record.
Until this morning, no explanation was forthcoming as to why it took from 6 November to 28 November for the issue to emerge about the unavailability of counsel. Ms Winfield says it was hoped something might come up to resolve the difficulty and she inferred that efforts had been made in that period to obtain alternative counsel. She also initially informed me that three other senior counsel have been approached to see whether they would be able to take on the matter, and further advised that two of the three had rejected the brief.
When Mr Morahan pointed out in response that we did not know the position of the third senior counsel, Ms Winfield was able to supplement the record in her reply by saying that she had just then seen an SMS message from the third senior counsel indicating their unavailability. However, as Mr Morahan said, there are many senior counsel in Sydney, and one cannot think that the pool of available senior counsel and certainly available junior counsel has been exhausted by enquiries made by the appellant’s solicitors (about which all we know is what has been said from the bar table today).
It might also be mentioned that at no point has there been any reference to any financial impost on the appellant of having to obtain alternative counsel at this late stage. I know nothing about his circumstances other than that it is apparent he has the funds to meet the expenses not only of junior but senior counsel.
Ms Winfield asserts an absence of prejudice to the respondent as a result of the proposed adjournment. She says this is not a parenting matter, and that the respondent has the benefit of a costs order made at first instance. Again, this proposition is met by Mr Morahan who says that he has set aside the time next Friday to take this brief and, of course, there is the prejudice felt by any party denied the opportunity to have litigation brought to an end as quickly as the court can accommodate. I therefore do not accept there is no prejudice.
I have also pointed out today that the authorities are clear that in dealing with case management issues such as this, the court is obliged to have regard not only to prejudice to the parties before the court, but prejudice to other parties whose litigation will be impacted by the way in which adjournment applications are dealt with and cases are managed.
As I have said earlier today, the affairs of the Appeal Division in Sydney are being conducted with considerable efficiency and expedition. A great deal of effort has been made over an extended time by the judges, registrars and staff to reduce very significantly the number of pending matters. At 30 June 2016 there were 129 pending appeal files in Sydney. This has now been reduced by more than one half, to less than 60. Efforts have also been made to ensure that matters are brought on more quickly than they were before.
It is accepted, I think, that the work of the Sydney Appeal Registry, indeed the work of the Appeal Division generally, is being conducted in an efficient fashion. This is so notwithstanding what one reads in the newspapers about delays in the hearing of some trials. All of this has been achieved in circumstances where judges have not been replaced when promises have been made that they would be replaced. These efficiencies have been achieved only as a result of exceptionally hard work and rigorous case management by both judges and registrars. Part of that efficient case management, as was pointed out in the email of 6 November 2017, is that when matters fall out of the list they are, wherever possible, replaced by another.
Another part of efficient case management involves refusing, wherever just and practicable, applications for adjournments based on unavailability of counsel of first choice. I appreciate in this case there are some other factors relating to the personal circumstances of counsel, but this application comes on so late that it is impracticable for the matter to be replaced with another. (I have already made enquiry of the Appeal Registrar to see if this matter could be replaced by another at this late stage and have been assured that it is not possible.)
I have also pointed out that there are two interstate judges who have been allocated to hear this appeal, along with a local judge. It so happens that those two judges were also involved in the case that was to proceed on 13 December 2017, but I have just had notice that that matter has settled. If this appeal does not proceed next Friday, the two interstate judges will be flown to Sydney with all of the attendant expense, only to hear one matter. This would be an unacceptable waste of taxpayer funds. Further, if this matter is adjourned until next year, then another matter, perhaps an urgent parenting matter, would lose its place and be heard later than it would otherwise have been heard.
I understand and accept Ms Winfield’s concern about how little time is now left between today and the day of the hearing of the appeal, but there are still five business days and a weekend remaining. I accept Mr Morahan’s submissions that, in such circumstances, counsel “buttons down and gets on with it”. It is a case now for the appellant to find alternative counsel (if Ms Winfield is not in a position to appear) to pick up a brief that appears in good order, and get on to complete the matter, which essentially involves advancing oral argument to supplement comprehensive written submissions.
For all of those reasons, the application for adjournment is dismissed.
RECORDED: NOT TRANSCRIBED
The application now is that of the respondent for the costs involved in opposing the application for an adjournment. Costs are sought in the sum of $800.
Ms Winfield suggests that those costs might be made costs in the appeal. I am not inclined to treat the costs as costs in the appeal; this is a discrete issue and it is appropriate in my view that, having determined the substantive matter, I also deal with the question of costs.
It is appropriate that the respondent have her costs, the appellant having been entirely unsuccessful. The costs sought of $800 are modest and appropriate.
The order therefore will be that the appellant will pay the respondent’s costs of the application in the sum of $800, payable within 28 days of the date hereof.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Thackray J delivered on 7 December 2017.
Associate:
Date: 12/12/17
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