Newett & Newett (No. 4)
[2021] FedCFamC1A 78
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Newett & Newett (No. 4) [2021] FedCFamC1A 78
Appeal from: Order dated 12 November 2021 Appeal number(s): NAA 26 of 2021 File number(s): BRC 2179 of 2018 Judgment of: AUSTIN J Date of judgment: 6 December 2021 Catchwords: FAMILY LAW – APPEAL – Application in an Appeal – Review of Decision – Where the Appeal Registrar made procedural orders settling the contents of the appeal book – Where the appellant sought an expansion of the contents of the appeal book – Order made adjusting the contents – Where the appellant sought the respondent or the Court be responsible for the cost of preparing the appeal book – Where no reason was advanced to justify shifting the cost to either the respondent or the Court –Where the appellant sought the respondent or the Court be responsible for the provision of a transcript – Where the appellant could not point to any exceptional circumstances justifying such an order – Review application otherwise dismissed. Legislation: Family Law Act 1975 (Cth) Pt VIII
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 32
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 13.18, 13.19, 13.20, 13.21
Cases cited: Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333; [2019] HCA 29
Forbes & Bream (2008) 222 FLR 96; [2008] FamCAFC 189
Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59
Newett & Newett (No. 2) [2021] FedCFamC1A 11
Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542; [2010] FamCAFC 220
Number of paragraphs: 34 Date of hearing: 6 December 2021 Place: Newcastle (via video link) Counsel for the Appellant: Litigant in person Counsel for the Respondents: Litigant in person ORDERS
NAA 26 of 2021
BRC 2179 of 2018FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS NEWETT
Appellant
AND: MR NEWETT
Respondent
ORDER MADE BY:
AUSTIN J
DATE OF ORDER:
6 DECEMBER 2021
THE COURT ORDERS THAT:
1.The time for compliance with Orders 5 and 7 made on 12 November 2021 is extended to 24 December 2021.
2.For the purpose of compliance with Orders 5 and 7 made on 12 November 2021, the Appeal Book shall comprise the following documents, but arranged in accordance with r 13.21(3) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth):
(a)the documents numbered 1–4, 11-20, 30–31 and 33–58 within the “Index to Appeal Book” annexed to the orders made on 12 November 2021; and
(b)the documents numbered 5, 9–18, 20–28, 104, 106, 108-153, 214–215, 217, 227 and 244–246 within the “Draft Appeal Index” filed by the appellant on 5 July 2021.
3.Otherwise, the Application in an Appeal filed on 29 November 2021 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).
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 pseudonym of Newett & Newett (No. 4) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE
REASONS FOR JUDGMENTAUSTIN J:
This appeal lies from property settlement orders made under Pt VIII of the Family Law Act 1975 (Cth) by a judge of the Family Court of Australia (as the Court was then known) on 20 May 2021.
On 12 November 2021, the Appeal Registrar made procedural orders to facilitate the readiness of the appeal for hearing by the Full Court on 1 February 2022. In effect, the orders settled the content of the appeal book and set the dates by which the appeal book and summaries of argument must be filed.
By an Application in an Appeal filed on 29 November 2021, supported by an affidavit filed on the same date, the appellant seeks the review of the procedural orders made by the Appeal Registrar. The review application was listed for hearing before me on 6 December 2021.
The appellant sought a raft of orders, but the only forms of relief she sought in substitution for the orders made by the Appeal Registrar were, first, an expansion of the contents of the appeal book, and secondly, orders making either the respondent or the Court responsible for the cost of procuring the transcript and filing the appeal book (Orders 1–5).
The supplementary orders sought by the appellant, which do not entail any review of the Appeal Registrar’s orders, are ones which:
(a)direct that no court event related to these appeal proceedings may be listed on less than 14 days written notice, and further, written reasons must be furnished to the parties explaining why any change is made to any listing date (Order 6);
(b)restrain the registrar from listing any future court event in the original proceedings without all parties’ written consent (Order 7); and
(c)force either the respondent or the Court to pay the “costs (time and materials)” of the appellant, calculated at “barrister level rates”, in relation to this application (Order 8).
There is no warrant to make Order 6, as urgency sometimes justifies matters being listed on short notice and administrative changes to listing dates do not require explanation by published reasons. Any dissatisfaction the appellant experiences with the Appeal Registrar’s future procedural orders can be remedied by another review application.
There is no power to make Order 7 in these appeal proceedings, as the order is only intended to affect the conduct of the continuing original proceedings (which are apparently now complete in any event). Appellate jurisdiction exists only to correct erroneous judgments at first instance; not to oversee and regulate the future conduct of original proceedings.
Since the appellant is a self-represented litigant, she has no entitlement to Order 8. She has no legal costs to recoup and incurred no disbursements in relation to this application. Costs orders are compensatory, not punitive (Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333 at [1], [3], [39], [57], [63], [93] and [99]; Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 543, Toohey J at 563 and McHugh J at 567). When that was explained, the appellant relinquished the application for Order 8.
I therefore turn to the issues affecting the readiness of the appeal for hearing in February 2022.
Appeal book index
As required by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”), the appellant filed a draft appeal index on 5 July 2021.
On cursory examination, the draft appeal index appears to include every application, response, affidavit and other miscellaneous document filed since the proceedings were commenced in March 2018. It comprises 265 separate documents (amounting to thousands of pages), many of which could not possibly be relevant to the appealed property settlement orders made on 20 May 2021, particularly since the proceedings below were wider than just the property dispute and involved parenting and enforcement disputes.
The appeal book is not just a replica of the Court file. Its content should be governed by the ambit of the appeal (r 13.20(1)(a)), which in this instance is relatively narrow. As pleaded, the grounds of appeal currently allege the primary judge’s criminal conduct (Grounds 1, 2 and 3) and bias (Grounds 4, 5 and 6), which it is contended caused his Honour to act in excess of jurisdiction and make orders which were ultra vires. Such contentions will entail submissions of law, perhaps premised upon the transcript of the proceedings and the reasons for judgment, but the reference to vast swathes of material filed at first-instance by the parties will hardly be pertinent to the outcome of the appeal.
Unsurprisingly, when the Appeal Registrar came to settle the content of the appeal book, as required by the Rules (rr 13.18(2), 13.20(1) and 13.21(3)), it was determined the appeal book needed far fewer documents than the appellant considered necessary. The appellant did not appear when the appeal book index was settled by the Appeal Registrar and so she deposed this in relation to its contents:
61.This is my Appeal and the 12 November 2021 order Index to the Appeal Book simply does not reflect my requirements for use at the Appeal hearing.
…
63.The Appeal Index as ordered by the Appeal Registrar directly reflects the requirements of the Respondent and the assumptions of the Appeal Registrars, all of which are unacceptable to me as the Appellant in this Appeal matter.
When challenged about the content of the appeal book index settled by the Appeal Registrar and the apparent unsuitability of the extra material the appellant wanted to include, she insisted the appeal book should accord with her draft appeal index. During submissions, the appellant conceded the draft appeal index all but replicated the appeal book she relied upon in a previous appeal. She seemed not to accept that a different appeal from different orders might require different evidentiary material. I reject the appellant’s submissions. The documents need to be culled considerably.
The appellant submitted that the primary judge’s misconduct commenced from the time procedural orders were made on 12 May 2020 to ensure the proceedings’ readiness for trial, commencing in November 2020. It should follow then that no document filed before that date could plausibly relate to the primary judge’s alleged criminal conduct and bias in the proceedings. The appellant’s gratuitous submissions about the misconduct of the respondent and his lawyers throughout the whole of the proceedings cannot be blithely attributed to the primary judge, as the appellant sought to contend.
Before passing from the issue of alleged judicial bias, it should be observed that the Full Court recently dismissed an appeal brought by the appellant from an order made by the same judge in February 2021 dismissing her disqualification application on account of his alleged bias (Newett & Newett (No. 2) [2021] FedCFamC1A 11). It would most likely be an abuse of process for the appellant to renew her allegations of judicial bias in this appeal by re-agitating submissions already made and rejected in that former appeal.
Given the character of the appeal, and erring well on the side of caution, the appeal book should comprise the following, but arranged as required by r 13.21(3) of the Rules:
(a)the Notice of Appeal
(b)the appealed orders made on 20 May 2021
(c)the reasons for judgment delivered by the primary judge on 20 May 2021
(d)the reasons for judgment delivered by the primary judge on 8 April 2021
(e)all orders made by the primary judge between 12 May 2020 and 20 May 2021
(f)the Amended Initiating Application filed on 16 November 2020
(g)the Amended Response filed on 27 November 2020
(h)all affidavits and financial statements filed by the parties between 12 May 2020 and 20 May 2021
(i)Case Outlines and written submissions filed by the parties between 26 November 2020 and 20 May 2021
(j)the list of exhibits tendered in the period between 30 November 2020 and 20 May 2021
(k)transcript of the proceedings conducted on:
(i)26 October 2020;
(ii)30 November 2020;
(iii)1 December 2020;
(iv)8 April 2021; and
(v)10 May 2021
The appellant agreed those dates comprised the entirety of the relevant transcript.
Compilation and filing of the appeal book
The obligation to compile and file the appeal book ordinarily falls to the appellant (r 13.19).
In an attempt to avoid that burden, the appellant deposed:
83.The orders of the Appeal Registrar included orders that I (the Appellant) be responsible for the production and cost of the Appeal Book that I played no part in making.
84.If the Appeal Registrar had proper knowledge of this case she would have found that to order such orders would impose exceptional hardship on the Appellant and that in the past I have provided the Northern Appeals Registry with Application for exemption from fees – financial hardship forms.
85.My financial hardship situation, which incidentally was caused by the Respondent, has not changed.
86.With that, the Appeal Registrar had the option through application of Rule 13.19(2)(a) and 13.19(2)(b) to relieve the Appellant of that considerable burden.
87.I (as the Appellant) consider that such Orders made without any of my input to be rude, insulting, abusive and vexatious in nature; and are in breach of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
(As per the original)
It can be seen that the appellant principally objects to bearing the cost of preparing an appeal book constructed in the terms ordered by the Appeal Registrar on 12 November 2021. Her more generalised complaint of the financial hardship in having to compile the appeal book at all, in any form it should take, lacks force. It was premised on the bald assertion that the respondent “stole all my money”.
There is no evidence of the appellant’s financial circumstances to verify her penury and, even if there was, no reason was advanced to justify shifting the cost of preparing the appeal book to either the respondent or the Court. It is the appellant’s appeal, so she must bear the responsibility of prosecuting it. Her submission that requiring her to prepare the appeal book amounts to “civil conscription” is rejected.
Given the content of the appeal book originally envisaged by the appellant is now trimmed considerably, the cost of its preparation should not be unduly onerous. The appellant admitted she already has the documents available. The only task will be re-assembling them according to the orders now made in the manner required by the Rules.
Cost of transcript
The cost of procuring the transcript of the proceedings below for the appeal usually falls to the appellant (r 13.19(4)).
The appellant objects to having to bear such cost and deposed:
65.If the Court requires written transcripts for its own benefit, it must pay for the production of such. The Court is well aware of my impecuniosity and must order ALL Transcripts at their own cost.
66.I am entitled to all public records including the Audio files of hearings to which I was a Party. My own intellectual property is not for the Court to sell and profit from. I made no such agreement for the Court to sell my conversations and intellectual contributions to Auscript. The Court has breached intellectual property and copyright law in relation to such.
67. My suggested solution for the Court is to have the Court:
a)listen to the Audio files of the Hearings – which is the only solution I have within my budget, as there is not cost to any Party using this approach.
b)make their own application to the Attorney General Office for production of all transcripts in BRC2179/2018 and provide the transcripts to the Appellant (being the unwilling participant and Respondent in the Primary matter therefore entitled to free, prompt, unfettered access to every Court and Administrative record in the case).
(As per the original)
Pertinently, the Court does not require any transcript at all for “its own benefit”. It is principally up to the appellant to determine what part, if any, of the transcript of the proceedings below should be placed before the Full Court as the platform for her anticipated successful prosecution of the appeal. There is no point served by the Full Court perusing transcript which has no bearing upon the outcome.
The appealed orders are premised upon evidence adduced and submissions made at the hearing before the primary judge, which occupied three days: 30 November 2020, 1 December 2020 and 10 May 2021.
The Court has already procured and provided freely to the appellant a copy of the transcript of the proceedings on 1 December 2020 (Notation 3 made by the Appeal Registrar on 12 November 2021).
The appellant agreed the additional day of transcript identified by the Appeal Registrar (being 8 April 2021) should also be included, but she additionally wanted to include transcript of a procedural hearing on 26 October 2020. The respondent did not object, so long as the cost did not fall upon him.
The Full Court should not be put to the inconvenience of listening to days of transcript, as the appellant apparently expects should occur, without the appellant deigning to indicate which parts are crucial to the appeal, which she neither did nor could. The Appeal Registrar advised the appellant to listen to the transcript so she would be able to identify those parts she contended were relevant (Notation 4 made by the Appeal Registrar on 12 November 2021), but she acknowledged she has not done so.
Nor should the Court be put to the expense of procuring the remainder of the transcript for the appellant. That would require quite exceptional circumstances (Forbes & Bream (2008) 222 FLR 96 at [35]–[36]; Sampson & Hartnett (Provision of Transcript) (2013) FLC 93-542 at [16]), which the appellant certainly did not demonstrate to exist in this instance.
Conclusion
Now that the contents of the appeal book will be different from both the index settled by the Appeal Registrar and her draft index, the appellant will be given slightly more time to prepare and file it. She formerly had until 17 December 2021, but will now have until 24 December 2021.
The appellant did not seek more time within which to file her Summary of Argument and so the parties’ Summaries of Argument are still due by 14 and 28 January 2022 respectively, allowing the appeal hearing to proceed on 1 February 2022.
These orders are made by a single judge exercising appellate jurisdiction and, for the appellant’s information, no appeal lies from these orders (ss 32(3)(i), 32(5) and 32(8) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).
I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Ex tempore Reasons for Judgment of the Honourable Justice Austin. Associate:
Dated: 7 December 2021
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