Okorie & Myska

[2024] FedCFamC1A 233

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Okorie & Myska [2024] FedCFamC1A 233

Appeal from:	Myska & Okorie [2024] FedCFamC2F 488
Appeal number:	NAA 122 of 2024
File number:	SYC 4836 of 2022
Judgment of:	ALDRIDGE J
Date of judgment:	9 December 2024
Catchwords:	FAMILY LAW – APPEAL – Oral application for adjournment of the hearing of an Application in an Appeal – Where the applicant instructed lawyers the day before the hearing – Where the lawyers failed to attend the hearing – Where the lawyers have not filed a Notice of Address of Service – Where the matter has been significantly delayed – Where the applicant has been aware of the listing for some time – Where there is no offer to pay the costs thrown away – Adjournment refused.
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.14
Number of paragraphs:	12
Date of hearing:	9 December 2024
Place:	Sydney
The Applicant:	Litigant in person
Counsel for the Respondent:	Mr Young
Solicitor for the Respondent:	Mack Lions Lawyers

ORDERS

NAA 122 of 2024
SYC 4836 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MS OKORIE

Applicant

AND:

MR MYSKA

Respondent

ORDER MADE BY:	ALDRIDGE J
DATE OF ORDER:	9 DECEMBER 2024

THE COURT ORDERS THAT:

1.The applicant’s oral application for an adjournment is refused.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Okorie & Myska has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

ALDRIDGE J:

1. This is an application for review of an appeal judicial registrar’s refusal to reinstate an appeal which was deemed to be abandoned because the applicant failed to file a draft appeal book index within the time required by r 13.14 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth). The applicant seeks an adjournment of the application because her lawyers have not appeared for her this morning.

2. There has been some confusion with lawyers variously telling the applicant that they were “on the way” and “about to arrive at court shortly”, but it seems they are not coming at all and she wishes to adjourn the proceedings so that she can be legally represented.

3. The decision subject of the appeal was given on 24 April 2024 and the draft appeal book index was due to be filed on 19 June 2024, which is nearly six months ago. The application to reinstate the appeal was not filed until 28 August 2024, some two and a half months later. The application was dismissed by an appeal judicial registrar on 23 September 2024 and the present application for review was filed on 28 October 2024.

4. As that short chronology shows, the matter has been significantly delayed and if the matter is delayed further it would not be able to be heard until at least March next year, which means there would be almost a year since the judgment subject of the appeal was given.

5. The applicant has been aware that this matter has been listed for hearing for some time and the issues were clearly outlined in the decision of the appeal judicial registrar. Yet it was only yesterday, from what I am informed, that the applicant sought the assistance of lawyers. Whilst if lawyers have in fact agreed to act it is surprising that they have not appeared today, they have not even filed a Notice of Address of Service. I cannot be confident in all the circumstances that even if the matter was adjourned, that lawyers would be engaged by the applicant.

6. The respondent is entitled to have this matter dealt with promptly and there is no offer to pay the costs thrown away by the adjournment so as to prevent the respondent being out of pocket if the application is adjourned.

7. It is also in the interests of justice generally, as well as between the parties, that interlocutory applications such as this are heard promptly and efficiently and do not unnecessarily take up days that could be spent dealing with other litigants’ issues.

8. Taking all these matters into account, the application is refused.

9. After the applicant had been addressing the Court for about 40 minutes, a solicitor, Ms C, who described herself as the agent for D Lawyers, the firm of solicitors instructed by the applicant who did not appear for her this morning, announced her appearance and sought an adjournment.

10. There was no lawyer here from D Lawyers this morning because, apparently, the principal has COVID-19 and none of the solicitors who were meant to be here turned up. That is a grossly unsatisfactory state of affairs, without any criticism of Ms C.

11. As already noted, no Notice of Address of Service has been filed by the solicitors.

12. The application for an adjournment is again refused.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Aldridge.

Associate:

Dated:       12 December 2024