Peters and Peters
[2013] FamCAFC 96
•19 June 2013
FAMILY COURT OF AUSTRALIA
| PETERS & PETERS | [2013] FamCAFC 96 |
| FAMILY LAW – APPEAL – consideration of whether the appeal should be dismissed for want of prosecution. |
| APPELLANT: | Mr Peters |
| RESPONDENT: | Ms Peters |
| FILE NUMBER: | BRC | 503 | of | 2009 |
| APPEAL NUMBER: | NA | 38 | of | 2012 |
| DATE DELIVERED: | 19 June 2013 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Finn, Strickland and Kent JJ |
| HEARING DATE: | 1 May 2013 |
ORDER MADE 1 May 2013
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
| LOWER COURT JUDGMENT DATE: | 21 July 2010 |
| LOWER COURT MNC: | [2012] FMCAfam 718 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Cooper |
| SOLICITOR FOR THE RESPONDENT: | Cooper Family Law |
Order made 1 May 2013
Pursuant to Rule 22.45 of the Family Law Rules 2004 (Cth) the appeal be dismissed for want of prosecution.
IT IS NOTED that publication of this judgment by this Court under the Peters & Peters has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 38 of 2012
File Number: BRC 503 of 2009
| Mr Peters |
Appellant
And
| Ms Peters |
Respondent
REASONS FOR JUDGMENT
On 1 May 2013 this Full Court made an order dismissing for want of prosecution an appeal by Mr Peters against property settlement orders made on 21 July 2010 by Federal Magistrate Coates (as he then was). These are our reasons for that order.
The appellant had originally filed his notice of appeal on 14 May 2012, having been granted an extension of time to do so.
On 4 June 2012 the Appeal Registrar made directions in relation both to
Mr Peters’ appeal and to two related appeals.
The Appeal Registrar did not require Mr Peters to file appeal books in his appeal, presumably because it was considered that the appeal books to be filed by the appellants in the two related appeals could be used for Mr Peters’ appeal. However, the Appeal Registrar did require Mr Peters to file a summary of argument in support of his appeal by 26 October 2012.
On 26 March 2013 the Appeal Registrar wrote to Mr Peters at his address shown on the amended notice of appeal. In that letter the Appeal Registrar referred to her order of 4 June 2012. The letter then continued:
I note that the appellant in Appeal NA38/2012 (Mr [Peters]) has indicated to the Appeals Assistance [sic] Mr [S]… that he is not proceeding with his appeal. If this is the case Mr [Peters] should forthwith file and serve a Notice of Discontinuance in that appeal.
On 4 April 2013 the Appeal Registrar again wrote to Mr Peters, saying:
I refer to my letter of 26 March 2013 and note that as appellant in Appeal NA38/2012 you have failed to comply with the order made on 4 June 2012…
…
I draw your attention to Rule 22.45 of the Family Law Rules 2004.
Pursuant to sub-rule 22.45(2)(a)(i) the Court may dismiss an appeal if the appellant is the defaulting party who has failed to comply with an order in relation to the appeal. Pursuant to Rule 22.45 the Court may make an order under sub-rule (2) on its own initiative.
This correspondence serves as written notice that the Court will consider whether to make such an order dismissing Appeal NA38/2012 at the hearing listed on Wednesday 1 May 2013 at 10.00am…
(bold emphasis in original)
The full text of Rule 22.45 is as follows:
(1) This rule applies if:
(a) the 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 Regulations;
(ii) complied with an order in relation to the appeal (including an application for leave to appeal or 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 when 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.
When the matter came before us on 1 May 2013, the appellant appeared in person. He confirmed to us that he wanted the appeal dismissed. Accordingly we ordered that the appeal be dismissed for want of prosecution pursuant to the provisions of Rule 22.45 of the Family Law Rules.
The solicitor for the respondent to the appeal was also before us. He confirmed that his client would not be making an application for costs in relation to the dismissed appeal.
I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, Strickland and Kent JJ) delivered on 19 June 2013
Associate:
Date: 19 June 2013
0
0