Pelkas & Dellis
[2023] FedCFamC1A 195
•10 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Pelkas & Dellis [2023] FedCFamC1A 195
Appeal from: Pelkas & Dellis [2023] FedCFamC1F 605 Appeal number(s): NAA 218 of 2023 File number(s): SYC 5179 of 2019 Judgment of: MCCLELLAND DCJ, ALDRIDGE & TREE JJ Date of judgment: 10 November 2023 Catchwords: FAMILY LAW – APPEAL – Findings of fact – Where updated valuation was delayed – Application in an Appeal to admit further evidence granted by consent – Where further evidence makes the finding of the primary judge incorrect – Parties seek consent orders – Error of fact established – Appeal allowed – Consent orders made.
FAMILY LAW – APPEAL – COSTS – Where the parties seek costs certificates – No error of law established – Parties’ conduct inconsistent with obligations under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Application for costs dismissed.
Legislation: Federal Proceedings (Costs) Act1981 (Cth) ss 6(1), 9(1)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 1.33(2), 10.27
Cases cited: Bhatnagar & Riju [2018] FamCAFC 144 Number of paragraphs: 18 Date of hearing: 2 November 2023 Place: Sydney Counsel for the Appellant: Mr Jackson Solicitor for the Appellant: McCabe Partners Lawyers Counsel for the Respondent: Mr Givney Solicitor for the Respondent: McGrath Dicembre & Co ORDERS
NAA 218 of 2023
SYC 5179 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS PELKAS
Appellant
AND: MR DELLIS
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, ALDRIDGE & TREE JJ
DATE OF ORDER:
2 NOVEMBER 2023
ON 2 NOVEMBER 2023 THE FULL COURT ORDERED THAT:
1.The Application in an Appeal to admit further evidence filed 11 October 2023 is granted.
2.Orders are made in accordance with the Minute of Order attached hereunder.
3.Judgment in relation to the question of costs is reserved.
MINUTE OF ORDER:
1.The appeal pursuant to Notice of Appeal filed 18 August 2023 be allowed.
2.Order 1 made 24 July 2023 be discharged and it is ordered in substitution:-
1.The respondent shall pay the appellant the sum of $620,000.00 as follows:-
1.1As to the sum of $30,000.00 on or before 4:00pm 20 November 2023.
1.2As to the balance [$590,000.00] on or before 4:00pm 28 December 2023.
3.Order 2 made 24 July 2023 be confirmed.
4.Order 3 made 24 July 2023 be discharged and it is ordered:-
3.1That in the event the respondent does not make the payment in Order 1 then the whole sum shall become due and payable and the respondent shall do all things required to sell the B Street, Suburb C property, and from the proceeds of sale, pay to the appellant $620,000.00 together with interest from the date of payment.
3.2That in the event the respondent complies with Order 1.1 and does not make the payment in Order 1.2 then the sale provision in Order 3.1 shall apply as to the sum of $590,000.00 together with interest from the due date.
ORDERS
NAA 218 of 2023
SYC 5179 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS PELKAS
Appellant
AND: MR DELLIS
Respondent
ORDER MADE BY:
MCCLELLAND DCJ, ALDRIDGE & TREE JJ
DATE OF ORDER:
10 NOVEMBER 2023
ORDER OF THE FULL COURT MADE ON 10 NOVEMBER 2023:
1.The applications of the parties for certificates under the Federal Proceedings (Costs) Act 1981 (Cth) 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pelkas & Dellis has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).]
REASONS FOR JUDGMENT
MCCLELLAND DCJ, ALDRIDGE & TREE JJ:
On 24 July 2023 a judge of the Federal Circuit and Family Court of Australia (Division 1) made property settlement orders in proceedings between Ms Pelkas (“the appellant”) and Mr Dellis (“the respondent”). The orders required the respondent to pay the appellant $508,061 with the parties otherwise to retain the property in his or her possession.
At the hearing of the appeal the parties asked the Court to set aside the orders of the primary judge and to replace them with orders which they had agreed as a compromise of the issues between them.
An appeal can only be allowed on the joint application of the parties if the appeals court is satisfied that an error was made by the primary judge. It cannot rely on the concession of the respondent to that effect. In Bhatnagar & Riju [2018] FamCAFC 144, Murphy J with the concurrence of Strickland and Ainslie-Wallace JJ said:
3.There is some judicial debate as to whether an appellate court must be satisfied of error when an appeal by consent of the parties is sought to be allowed. In Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy, the Full Court of the Federal Court said in relation to a provision similar to the relevant provision of the Family Law Act 1975 (Cth) (“the Act”):
[43]In making any consent order the court must be satisfied that the order is within power and appropriate. The question is whether, before it can make an order allowing an appeal by consent of the parties, the court must be satisfied that there was a legal or factual error or an error in the exercise of a discretion by the primary judge.
4. The Full Court of the Federal Court concluded:
[51]In our opinion none of the preceding authorities relieves this court of the duty to be satisfied, as a condition of the exercise of its power to allow an appeal by consent, that there was an appellable error.
5.A subsequent Full Court of the Federal Court in Citigroup Pty Ltd v Mason, said that “there may be … a basis for concluding that [Telstra Corporation] was plainly wrong”, albeit that the later court conceded that, “[i]n the absence of that contention being advanced and detailed submissions” being provided, they were “constrained to follow the earlier Full Court’s judgment”.
6.I am only aware of one decision in this Court in respect of that issue, called Simpson & Brockmann. In that case, Warnick J at [5] referred to “some debate in intermediate Appellate Courts” to which I have just referred. Although his Honour did not elaborate on that debate, his Honour said at [6]:
I, for myself, if satisfied that an Appellate Court can make orders allowing an appeal by consent and consequential orders, consider the Court might still decline to do so in particular circumstances…
7.These reasons are given by me pursuant to my view that it is in fact necessary, consistent with what the Full Court of the Federal Court in Telstra Corporation said, for us to be satisfied of appealable error and to give reasons accordingly.
(Footnotes omitted)
The primary judge found the value of the respondent’s company to be $130,711.
Her Honour did so because there was a concession to that effect by the respondent. An updated valuation was not available at the hearing and the primary judge declined to adjourn the matter for a day or so to enable it to be completed.
By consent, the Full Court allowed the appellant to adduce evidence in the appeal which demonstrated that the single expert had valued the respondent’s company at $317,324.
An appeal to this Court is an appeal by rehearing which means that it takes into account the law and facts at the time of the hearing of the appeal.
Having regard to the further evidence, the finding that the respondent’s business has a value of $130,711 is incorrect. We, accordingly, were satisfied Ground 2 of the Notice of Appeal was made out, that the appeal should be allowed, and the orders should be set aside and the agreed property division orders be made.
Each of the parties sought a certificate pursuant to the Federal Proceedings (Costs) Act1981 (Cth) (“Costs Act”). Such certificates may be granted where an appeal has been successful on a question of law (ss 6(1) and 9(1) of the Costs Act).
We are not satisfied that the appeal succeeded on such a question. Whilst making a finding of fact where there is no evidence to support it can be an error of law, here there was evidence, being the concession as to value, which justified her Honour’s finding.
The relevant error we have identified is an error of fact, relying on the evidence adduced on the appeal.
There is a further reason why certificates should not be granted.
The valuation was expected to be available during the hearing, but was delayed due to the illness of the valuer. That, however, is not the complete picture.
On 11 November 2022, the primary judge ordered each party to file and serve all material on which they wished to rely by 4.00 pm on 17 March 2023 and that no further affidavits were to be filed without the leave of the Court first obtained.
No affidavit of the valuer was filed in accordance with that direction. Indeed, the further evidence shows that he was not asked to prepare an updated valuation until 8 June 2023 and that further information was being given to him on the first day of the hearing.
Directions made for the preparation of a hearing are orders of the Court and must be complied with. The consequence for not complying can be severe (see r 1.33(2) and r 10.27 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“the Rules”)). They are not some form of aspirational guideline that can be ignored with impunity.
The grant of certificates would be inconsistent with the conduct of the parties and inconsistent with the parties’ and the lawyers’ obligation to conduct the proceedings consistently with the overarching purpose of the Rules, namely, to facilitate the just resolution of the dispute as quickly, inexpensively, and efficiently as possible.
We decline to grant the certificates.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Deputy Chief Justice McClelland and Justices Aldridge and Tree. Associate:
Dated: 10 November 2023
2