Pancious v Searle - [2015] HCASL 83

PANCIOUS
v
SEARLE
[2015] HCASL 83
M14/2015

The applicant seeks special leave to appeal against the orders of a single judge of the Family Court of Australia (Strickland J) dismissing the applicant's application to reinstate his appeal to the Full Court of the Family Court. The applicant's appeal to the Full Court was against the dismissal by Cronin J of an application to restrain the respondent's lawyers from further acting for her in property and parenting proceedings. The applicant's appeal to the Full Court had been deemed to be abandoned because the applicant had not filed appeal books within the time fixed for doing so.
The applicant's appeal to the Full Court was deemed abandoned in July 2012. The applicant did not apply for reinstatement of the appeal until March 2014. No satisfactory explanation of this delay was given.
Strickland J concluded that the appeal lacked merit and was "plainly futile" and that, in all the circumstances, the interests of justice required that the application to reinstate the appeal be refused.
The applicant does not have legal representation and so his application falls to be determined pursuant to r 41.10 of the High Court Rules 2004.
There is no reason to doubt the correctness of the decision of Strickland J. An appeal to this Court would enjoy no prospect of success.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
13 May 2015 G.A.A. Nettle

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] HCASL 83
Decision Date

CaseChat Overview and Summary

In the case of Pancious v Searle, the applicant sought special leave to appeal against the decision of a single judge of the Family Court of Australia, Strickland J, who had dismissed the applicant's application to reinstate his appeal to the Full Court of the Family Court. The appeal was originally dismissed by Cronin J, who had ruled on an application to restrain the respondent's lawyers from further acting for her in property and parenting proceedings. The applicant's appeal to the Full Court was deemed abandoned due to the failure to file appeal books within the specified time frame. The applicant subsequently applied for reinstatement of the appeal, but did not provide a satisfactory explanation for the delay in doing so. Strickland J concluded that the appeal lacked merit and was "plainly futile," and that the interests of justice required the refusal of the application to reinstate the appeal.

The legal issues before the court were whether special leave should be granted to appeal against the decision of Strickland J, and if the appeal had any prospect of success. The court needed to assess the merits of the appeal, the reasons for the delay in filing the application for reinstatement, and whether the interests of justice warranted allowing the appeal. The applicant, who appeared unrepresented, was subject to the provisions of r 41.10 of the High Court Rules 2004.

The court considered that there was no reason to doubt the correctness of Strickland J's decision. The appeal was deemed to have no prospect of success, given the lack of merit and the absence of a satisfactory explanation for the delay in applying for reinstatement. The court directed the Registrar to draw up, sign, and seal an order dismissing the application, pursuant to r 41.10.5 of the High Court Rules 2004. This decision was made by K.M. Hayne and G.A.A. Nettle on 13 May 2015.

Orders