Piercy-Wright and Mullins

[2016] FamCAFC 205

FAMILY COURT OF AUSTRALIA

PIERCY-WRIGHT & MULLINS [2016] FamCAFC 205

FAMILY LAW – APPEAL – Where the appellant has not complied with the orders made to prepare the appeal for hearing – Where the respondent seeks that the appeal be dismissed pursuant to r 22.45 of the Family Law Rules 2004 – Where there was no appearance by or on behalf of the appellant – Appeal dismissed – Appellant to pay the respondent’s costs of the appeal.

Family Law Rules 2004 (Cth): r 22.45(1)(b)

APPELLANT: Mr Piercy-Wright

RESPONDENT: Ms Mullins

FILE NUMBER: AYC 330 of 2011

APPEAL NUMBER: EA 53 of 2016

DATE DELIVERED: 5 October 2016

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 5 October 2016

LOWER COURT JURISDICTION: Federal Circuit Court of Australia

LOWER COURT ORDERS MADE: 8 March 2016

REPRESENTATION

FOR THE APPELLANT: No appearance by or on behalf of the appellant

COUNSEL FOR THE RESPONDENT: Mr O’Brien

SOLICITOR FOR THE RESPONDENT: Women’s Legal Service

Orders

1. That the appeal be dismissed.

2. That the appellant pay the respondent’s costs of and incidental to the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Piercy-Wright & Mullins has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 53 of 2016
File Number: AYC 330 of 2011

Mr Piercy-Wright

Appellant

And

Ms Mullins

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By Notice of Appeal filed on 4 April 2016, Mr Piercy-Wright (“the appellant”) appeals orders made by Judge Harman on 8 March 2016.  The Chief Justice determined that the appeal would be determined by a single judge. 

2. The appeal came before me for a procedural hearing on 24 August 2016, on which occasion the appellant appeared via telelink and Ms Mullins (“the respondent”) appeared represented by a solicitor.  Directions were made for the hearing of the appeal which relevantly included an order that the appellant file and serve a summary of argument and list of authorities by 4.00 pm on 16 September 2016. 

3. The appeal itself was listed for hearing at 10.00 am today; being a date which the appellant and respondent indicated was convenient. 

4. As it transpires, the appellant has not filed a summary of argument and he is not present today. 

5. Yesterday the Appeals Registry contacted the appellant in an attempt to ascertain his intentions in relation to the appeal today.  The net effect of that is that yesterday, at 3.42 pm, the appellant sent an email as follows:

   i sent an email couple weeks back with a from [sic] for notice of withdrawal. must of sent to wrong email. my apologies. did you want me to try send again? 

   (as per original)

6. At 3.48 pm, by return email, the assistant to the Appeals Registrar provided the appellant with a notice of discontinuance and requested that it be returned via email as soon as possible.  The notice of discontinuance has not been received and this morning the appellant made contact with the Appeal Registry suggesting he had some difficulties with his smartphone and was unable to deal with the notice of discontinuance on his computer.  Of course, one might have anticipated that if a notice of discontinuance was sent to the court a couple of weeks ago, that document would have been readily available.  But in any event, there has not been a notice of discontinuance and the appellant does not appear today.  I observe the appellant gave no notice to the respondent that he intended to discontinue the appeal.

7. Notwithstanding the appellant’s failure to file a summary of argument, counsel representing the respondent filed a summary of argument on 28 September 2016. At paragraph 3 of that document, counsel for the respondent drew the appellant’s attention to r 22.45 of the Family Law Rules 2004 (Cth) (“the rules”) and went on to argue that the failure by the appellant to file a summary of argument should result in the appeal being dismissed. The point being as is set out at paragraph 3 that the appellant has failed to properly prosecute the appeal.

8. The sense of paragraph 3 of the respondent’s summary of argument is to, in effect, draw the appellant’s attention to r 22.45(1)(b)(ii) and (iii).

   
   

   Sub-paragraph (ii) directs the appellant’s attention to the consequences of the failure to comply with an order in relation to the appeal, that being the order for the filing of a summary of argument. Sub-paragraph (iii) is concerned with a failure to show reasonable diligence in proceeding with an appeal or application. It is the reference to an appeal that is particularly relevant to the matter at hand. In my view, r 22.45(1)(b)(ii) and (iii) are both engaged and the respondent has made out the case for the appeal to be dismissed pursuant to these rules.

9. The next question which arises is the cost consequences of the appeal having been dismissed.  The respondent is represented by the Women’s Legal Service.  They are a community legal centre and have provided the respondent with assistance on a pro bono basis as, indeed, does counsel who appears for her today.  The effect of that is the only costs that have been incurred are in the nature of disbursements and are necessarily modest.  But community legal services provide a very important service to the community and they can ill afford to have their costs, even in small amounts, wasted.  It is appropriate, in my view, that the appeal having been dismissed, that the appellant pays the disbursements even if the amount sought is very small. 

10. I also take the opportunity to indicate to the respondent that I consider the appellant’s approach to this appeal has been disrespectful of her: in that she has been put to the trouble of resisting this appeal with all the attendant stressors associated with litigation and the necessity to be here today.  It is a circumstance that should not have happened.  I imagine having read the evidence relied upon by the respondent in the Court below that if asked, she might not be surprised.  But in any event, the appeal proceedings are over and I am grateful to those who have provided assistance to the respondent.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 5 October 2016.

Associate:

Date:  27 October 2016