Neece & Farbey
[2023] FedCFamC1A 178
•17 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Neece & Farbey [2023] FedCFamC1A 178
Appeal from: Farbey & Neece [2023] FedCFamC2F 779 Appeal number: NAA 169 of 2023 File number: BRC 6662 of 2020 Judgment of: MCCLELLAND DCJ Date of judgment: 17 October 2023 Catchwords: FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where the appellant failed to file Summary of Argument in the appeal – Where the appellant provided a cursory and outdated medical certificate – Notice given pursuant to r 13.45(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Appeal dismissed pursuant to r 13.45 – Costs ordered against the appellant. Legislation: Family Law Act 1975 (Cth) s 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 32(3)(f)(i), 67, 68
Family Law Rules 2004 (Cth) r 1.08
Federal Circuit and Family Court of Australia (Family Law) Rules2021 (Cth) rr 10.13, 12.17, 13.45
Cases cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Lenova & Lenova (Costs) [2011] FamCAFC 141
Mills & Mills [2022] FedCFamC1A 138
Myron & Milson (2020) FLC 93-969; [2020] FamCAFC 151
Singam & Moffrey (2015) FLC 93-641; [2015] FamCAFC 42
Stoian & Fiening(Costs) [2014] FamCA 944
Wilkes and Wilkes (1981) FLC 91-060; [1981] FamCA 41
Number of paragraphs: 30 Date of hearing: 17 October 2023 Place: Brisbane (via videolink) The Appellant: Litigant in person Solicitor for the Respondent: Mr Steel, North Brisbane Law ORDERS
NAA 169 of 2023
BRC 6662 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS NEECE
Appellant
AND: MR FARBEY
Respondent
ORDER MADE BY:
MCCLELLAND DCJ
DATE OF ORDER:
17 OCTOBER 2023
THE COURT ORDERS THAT:
1.The Notice of Appeal filed by the appellant on 22 June 2023 is dismissed.
2.The appellant is to pay the costs incurred by the respondent in the lump sum amount of $2,719.26 within 60 days of the date of these orders.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the Neece & Farbey pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
MCCLELLAND DCJ:
By way of Notice of Appeal filed on 22 June 2023, the appellant has appealed against property orders made on 25 May 2023 by a judge of Division 2 of the Federal Circuit and Family Court of Australia following an undefended hearing that occurred before the primary judge on that day.
That undefended hearing occurred in circumstances where the matter had previously been adjourned from an earlier listing in February. The matter was adjourned on that first occasion on the basis of a medical certificate presented by the appellant.
Having regard to [1]–[6] of the reasons for judgment dated 25 May 2023, the primary judge had significant reservations in granting that first adjournment in February 2023.
For reasons set out in the judgment, the primary judge explained why he declined to grant a further adjournment sought by the appellant shortly prior to the May final hearing. In doing so, his Honour referred to the decision of the Full Court in Myron & Milson (2020) FLC 93-969 and which reads as follows at [41]:
…The mere assertion of unfitness for work or inability to attend court, even by a medical practitioner, is unlikely to carry weight. It is expected that some explanation is given concerning the person’s medical condition and, unless the consequences of the condition are obvious, some explanation as to why the person is unable to attend court is necessary. This can be done briefly and it is not suggested that in the circumstances of this case, busy medical practitioners were expected to provide lengthy medical reports. However, the paucity of information provided in the medical certificates as to the underlying facts and the basis upon which the conclusion as to incapacity was reached, more than justifies the primary judge’s decision to give them little weight.
In circumstances where the matter was heard on an undefended basis, the orders that the primary judge made on 25 May 2023 included a notation that:
… this matter has proceeded by way of undefended hearing in the absence of the Respondent and pursuant to Rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules2021 the Respondent may apply to have these orders set aside.
(As per the original)
Despite that notation, there has been no such application made pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”). Such an application would have been the preferable course for the appellant to have pursued in the circumstances of this case. In that respect in Singam & Moffrey (2015) FLC 93-641 the Full Court stated:
Finally, it may be useful if we take this opportunity to draw attention to the fact that it has been long been established in this jurisdiction that where a party seeks to set aside orders made in his or her absence, the proper course is for that party to apply at first instance for a rehearing rather than seek to have the matter dealt with by a way of an appeal (Wilkes and Wilkes (1981) FLC 91-060).
It is to be noted that the appellant was also notified of her entitlement to pursue an application under r 10.13 at a directions hearing on 8 August 2023 before a Judicial Registrar. Instead of pursuing that recommended course, the appellant filed a Notice of Appeal on 22 June 2023. The grounds of appeal are set out as follows:
Appeal against the Property Orders made at Trial
1.The Appellant was denied procedural fairness in that the Trial proceeded on an undefended basis, notwithstanding her lack of capacity to conduct the proceedings as demonstrated by:
(a)her former lawyers… having filed an Application in a Proceeding on 27 January 2023, seeking Orders that a Litigation Guardian be appointed on her behalf in the proceedings;
(b)Her inability to apply for representation under the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme"), despite specific Notations and Orders being made to this effect on 10 May 2022 [Notations C to F], and 17 February 2023 [Order 4 and Notation A];
(c)Her inability to file her Affidavit of Evidence-in-Chief, supporting Affidavits or Case Outline, despite Orders being made for her to do so on 10 May 2022 and 17 February 2023.
2.His Honour provided inadequate reasons to establish the basis for the decision that the net asset pool be divided as to 54% to the Appellant and 46% to the Respondent.
3.His Honour did not provide adequate reasons to establish the contributions assessment of the parties in percentage terms pursuant to section 90SF(4) of the Family Law Act 1975 (“the Act”), or any specific adjustment required pursuant to section 90SF(3) of the Act.
4.His Honour erred in not taking into account the Appellant's mental health conditions as a relevant factor in making a property adjustment Order, pursuant to section 90SF(3)(a) and (b) of the Act.
(As per the original)
In progressing the appeal, the parties appeared before a Judicial Registrar on 8 August 2023, at which time, the judicial registrar made the following directions:
11.The Appellant file and serve the summary of argument and list of authorities upon which they wish to rely by 4.00pm on Friday 8 September 2023.
12.The respondent file and serve the summary of argument and list of authorities upon which they wish to rely by 4.00pm on Friday 6 October 2023.
Thereafter, by email sent to the Court on 8 September 2023, the appellant indicated that she suffered from declining physical, emotional and psychological health and attached the following medical certificate dated 7 September 2023:
MEDICAL CERTIFICATE
Date: 07/09/2023
THIS IS TO CERTIFY THAT:
Name: Ms Neece
D.O.B: […]
This lady has been a patient of mine since 2005. She has been very stressed and anxious since December 2022, due to a prolonged legal ‘fight’ with her ex-husband and problems with her previous employer, combined with issues relating to her legal representatives, and with increasing financial stress due to a decreasing bank balance; she is unfit to prepare documentation or to attend any court appearances until at least the end of the year.
[Medical Practitioner]
(As per the original)
Following receipt of the email from the appellant dated 8 September 2023, the Northern Appeals Registry replied on 8 September 2023 advising the appellant that if she wished to apply for adjournment of the appeal, it was necessary for the appellant to file an Application in an Appeal and an affidavit in support explaining why the adjournment was being sought. It is common ground that an Application in an Appeal was not filed. Notably, despite the reference to the appellant being “very stressed and anxious since December 2022”, it is to be observed that she did have the capacity to engage legal representatives who assisted her to prepare the Notice of Appeal filed 22 June 2023. The appellant also had the ability to attend the directions hearing on 8 August 2023.
It is to be noted that the appellant’s letter sent on 8 September 2023 followed her receiving a letter sent by the Court on 6 September 2023. This letter reminded the appellant of her obligation to comply with the directions made by the Court on 8 August 2023, and specifically, to file her Summary of Argument by 8 September 2023.
A further letter dated 11 September 2023 was also sent by a Judicial Registrar to the appellant noting her non-compliance with the directions made on 8 August 2023. This occurred in the absence of the appellant filing either an Application in a Proceeding seeking an adjournment or a Summary of Argument and List of Authorities as directed and as requested in the correspondence of 6 September 2023. The letter referred the appellant to the provisions of s 32(3)(f)(i) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”), pursuant to which the Court may dismiss an appeal for failure to comply with a direction of the Court.
The appellant was also referred to r 13.45 of the Rules, which noted that the Court may, on application or by its own initiative, dismiss an appeal for a failure to comply with a direction of the Court. Specifically, r 13.45 sets out that:
(1) This rule applies if:
(a) an appeal is not taken to have been abandoned; and
(b) a party (the defaulting party) has not:
(i)met a requirement under these Rules or the Family Law Regulations; or
(ii)complied with an order in relation to the appeal (including an application for leave to appeal or any other application in relation to an appeal); or
(iii)shown reasonable diligence in proceeding with an appeal or application.
(2) A court having jurisdiction in the appeal or application may:
(a) if the defaulting party is the appellant or the applicant:
(i) dismiss the appeal or application; or
(ii)fix a time by which a requirement is to be met and order that the appeal or application will be dismissed if the order imposing the requirement is not complied with; or
(b) if the defaulting party is the respondent:
(i)fix a time by which a requirement is to be met and order that the appeal or application will proceed if the order imposing the requirement is not complied with; or
(ii) proceed to hear the appeal or application.
(3)The court may make an order under subrule (2) on its own initiative if, at least 14 days before making the order, written notice has been given to the parties about the date and time the court will consider whether to make the order.
(4)An application for costs in relation to an appeal or application dismissed under this rule must be made within 28 days after the dismissal.
The relevant authorities relating to the Court exercising discretion under r 13.45 of the Rules are summarised in Mills & Mills [2022] FedCFamC1A 138 at [5] as follows:
Before addressing the specific circumstances of this case, I will set out the relevant law, which has been usefully summarised by the Full Court in the decision of Bethke & Bethke (2019) FLC 93-906, in particular at [25]–[32]:
In Jackamarra v Krakouer (1998) 195 CLR 516 at 528, Gummow & Hayne JJ said:
…when an appellant has instituted an appeal within time, if all other things are equal, the bare fact that the appellant has failed to take some interlocutory step within the time fixed by the rules would not be reason enough to shut that appellant out from the pursuit of the appeal unless it were clear that the appeal would fail. Of course, the qualification “if all other things are equal” is very important and it should not be permitted to obscure the fact that very often the fact that an appeal is pending may itself affect the respondent adversely in some way. …
Applying the above principle, the Full Court in Connor & Cosgrove (2017) FLC 93 769 (“Connor”) found at [25] that:
…All other things are not equal and it would represent an injustice to the mother to permit the appeal to continue in circumstances where the father would, in all likelihood, not file a summary of argument for at least a further three months…
In Connor, the Full Court cited (at [17]), with approval, McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 553:
A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.
Though that case was concerned with time limits for commencing proceedings, the Full Court in Connor stated at [17] that it “nonetheless resonates on the question of delay and justice”.
Similarly, s 97(3) of the Act states:
In proceedings under this Act, the court shall proceed without undue formality and shall endeavour to ensure that the proceedings are not protracted.
Rule 1.04 expresses that the main purpose of the Rules is “to ensure that each case is resolved in a just and timely manner at a cost to the parties and the court that is reasonable in the circumstances of the case”. Further, r 1.08 imposes a responsibility on all parties to “promote and achieve the main purpose” of the Rules by inter alia “ensuring readiness for court events” (r 1.08(c)), “complying with time limits” and “assisting the just, timely and cost-effective disposal of cases” (r 1.08 (e) and (g)).
As discussed by the Full Court in Connor at [19], r 22.45 of the Rules is mirrored in r 21(2)(b) of the Court Procedure Rules 2006 (ACT), considered by the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 where it was said, at [92], per Gummow, Hayne, Crennan, Kiefel & Bell JJ:
The purposes stated in r 21 reflect principles of case management by the courts. Such management is now an accepted aspect of the system of civil justice administered by courts in Australia. It was recognised some time ago, by courts here and elsewhere in the common law world, that a different approach was required to tackle the problems of delay and cost in the litigation process. In its report in 2000, Managing Justice: A review of the federal civil justice system, the Australian Law Reform Commission noted that: “Over the last ten years Australian courts have become more active in monitoring and managing the conduct and progress of cases before them, from the time a matter is lodged to finalisation”.
(Footnotes omitted)
Even allowing for the incarceration of the appellant, he has been given multiple opportunities to prosecute his appeal but has not. He has not filed an Amended Notice of Appeal joining his Trustees as directed by the Registrar since April 2018 (over ten months). Given the procedural history of this matter, the appellant has offered no adequate explanation for his failure to prosecute his appeal.
The relevant principles set out in r 1.08 of the formerly applicable Family Law Rules 2004 (Cth), and also the principles adumbrated in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175 are now reflected in ss 67 and 68 of the FCFCOA Act.
In response to the application for the proceedings to be dismissed, the appellant has essentially repeated the previous representations that, as a result of physical and mental health issues including stress, anxiety, depression and post-traumatic stress disorder, she has been unable to attend to the preparation of the documents required to be filed, pursuant to the directions made by the Court. Further, she has advised that she has had trouble martialling the necessary documents for the purpose of instructing lawyers to assist her in that process.
The Court accepts that, inevitably, litigation is stressful. It is costly – both emotionally and financially. Nonetheless, the efficient functioning of the Court is important for several reasons. Firstly, the Court absorbs significant public resources that must be used effectively and efficiently. Secondly, the work undertaken by the Court has an impact not only on these immediate litigants before the Court, but also, as noted in s 67 of the FCFCOA Act, on other litigants. In other words, time set aside by the Court for the hearing of a matter – in this case, the hearing of an appeal today – has necessarily precluded me from my ability to hear and determine other proceedings.
Accordingly, the effective and efficient conduct of litigation is a factor that I have considered in having regard to the relevant authorities cited above as well as the principles set out in ss 67 and 68 of the FCFCOA Act.
Additionally, while I note the appellant’s assertion of physical, emotional and psychological challenge, the medical certificate that she has provided is dated 7 September 2023. That is now approximately five weeks out of date. Further, the certificate appears to be in the nature of the material presented to the primary judge when he gave little weight to the certificate tendered in the proceedings before him and marked as Exhibit “2”. Specifically, the certificate did not set out the basis upon which the medical practitioner had considered the appellant to be incapable of participating in proceedings until towards the end of the year.
As noted above, this is in the context where the appellant has demonstrated capacity to instruct lawyers to prepare the Notice of Appeal filed 22 June 2023. She was also capable of appearing before a Judicial Registrar on 8 August 2023.
In summary, having regard to the background of this matter, the relevant correspondence between the Court and the appellant reminding her of her obligations to comply with the orders of 8 August 2023, in the absence of the appellant either filing an Application in an Appeal seeking an adjournment, or complying with those directions despite the reminders she received on 6 September 2023 and also on 11 September 2023, for the reasons I have set out, I am satisfied that the appeal should be dismissed pursuant to r 13.45(2)(a)(i) of the Rules, and pursuant to s 32(3)(f)(i) of the FCFCOA Act. Accordingly, I make those orders.
COSTS
In this matter, the respondent has sought an order for costs on a party-party basis. I am satisfied that in circumstances where the appeal has been dismissed for want of prosecution, that such an order is appropriate. In that respect, I appreciate that the orders will depart from the general principal set out in s 117(1) of the Family Law Act 1975 (Cth) (“the Act”) that, generally, parties to proceedings before the Court should bear their own costs. That section is, however, subject to s 117(2A) of the Act.
Relevantly, in relation to s 117(2A)(a) of the Act, the financial circumstances of the parties to the proceedings are revealed in the judgment of the primary judge. That is, pursuant to the property adjustment orders made by the primary judge, the appellant will receive a lump sum in the order of $455,000. Therefore, in my view, the appellant has the capacity to meet such an order. In any event, authorities indicate that the impecuniosity of a litigant does not disbar the Court or prevent the Court from making an order for costs: Lenova & Lenova (Costs) [2011] FamCAFC 141.
Most relevantly, s 1179(2A)(e) of the Act provides that another consideration is whether the party has been wholly unsuccessful in the proceedings. That has occurred in circumstances where the proceedings have been dismissed for want of prosecution.
The third relevant criteria is set out in s 1179(2A)(c) of the Act, which relates to the manner in which the party has conducted the proceedings. In this case, despite receiving correspondence by way of reminder on 6 September 2023 and 11 September 2023, the appellant has failed to comply with the directions made on 8 August 2023. Specifically, the appellant did not file her Summary of Argument and List of Authorities in accordance with the prescribed time.
Having regard to those matters I am satisfied that it is appropriate for the appellant to be required to pay the respondent’s costs in this matter.
The Court is empowered to make an order for costs by way of various methods set out in r 12.17 of the Rules, including, pursuant to r 12.17(1)(a), an order fixing costs in a specific lump sum amount.
In determining whether it is appropriate to do, I have had regard to the summary of relevant authority set out by Kent J in the matter of Stoian & Fiening (Costs) [2014] FamCA 944 at [91]:
Commencing at [8] of his judgment Einstein J discussed the applicable principles in these terms:
8. As may be expected in what is likely the largest claim ever made in this country for a gross sum costs order, both parties took the court to the authorities which inform the principled exercise of the relevant discretion. Notwithstanding that some areas of difference arose concerning disparate parameters/appropriate emphases, in terms of the application of the appropriate principles, there were in the main no areas of serious disagreement.
9. For present purposes it seems convenient to commence with the recitation of the principles which inform the exercise of the discretion;
i. the purpose of the rule is to avoid the expense, delay and aggravation involved in protracted litigation arising out of taxation: Beach Petroleum NL v Johnson (1995) 57 FCR 119, Von Doussa J page 265: [following Purchase J in Leary v Leary [1987] 1 All ER 261 who described the purpose of the rule allowing the fixing of a gross sum as “the avoidance of expense, delay and aggravation involved in protracted litigation arising out of taxation” (All ER page 265)];
ii. the touchstone requires that the Court be confident that the approach taken to estimate costs is logical, fair and reasonable: Beach Petroleum at [16];
iii. the fairness parameter includes the Court having sufficient confidence in arriving at an appropriate sum on the materials available: Harrison v Schipp (2002) 54 NSWLR 738, per Giles JA at [22]; [following (Wentworth v Wentworth (CA, 21 February 1996, unreported, per Clarke JA) and adopted in Sony Entertainment v Smith (2005) 215 ALR 788];
iv. a gross sum assessment, by its very nature, does not envisage that a process similar to that involved in a traditional taxation or assessment of costs should take place: Harrison v Schipp at [22];
v. the gross sum “can only be fixed broadly having regard to the information before the Court”: Beach Petroleum at 124;
[in Hadid v Lenfest Communications Inc [2000] FCA 628 at [35] it was said that the evidence enables fixing a gross sum “only if I apply a much broader brush than would be applied on taxation, but that…is what the rule contemplates”.]
vi.nevertheless the power to award a gross sum must be exercised judicially, and after giving the parties an adequate opportunity to make submissions on the matter: Leary v Leary [1987] 1 WLR 72 at 76, and Beach Petroleum NL v Johnson (No. 2) (1995) 57 FCR 119 at 120;
vii.in terms of the necessity for the approach taken to be logical, fair and reasonable, Von Doussa J in Beach Petroleum NL & Anor v Johnson & Ors (No. 2) (1995) 57 FCR 119, put the matter as follows, at [16]:
“On the one hand the Court must be astute to prevent prejudice to the respondents by overestimating the costs, and on the other hand must be astute not to cause an injustice to the successful party by an arbitrary “fail safe” discount on the cost estimates submitted to the Court: Leary v Leary at 265…”
Most relevantly, in terms of those authorities, I must be satisfied that the amount of costs sought is “logical, fair, and reasonable”. In considering that question, in the circumstances of this case, I have had regard to the affidavit of the solicitor for the respondent filed 10 October 2023, setting out the assessment of costs incurred by a solicitor advocate in accordance with the family law scale, which has been itemised and totals $2,719.26. Having regard to those matters that have been so assessed, I am satisfied that the amount sought by the respondent for costs is “logical, fair, and reasonable”.
Accordingly, I will make an order that the appellant is to pay the costs of the respondent in the sum of $2,719.26 within a period of 60 days.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Deputy Chief Justice McClelland. Associate:
Dated: 31 October 2023
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