Pisani & Pisani

The appeal in Pisani & Pisani arose from a Family Court of Australia decision, where the appellant, seeking to challenge the findings of fact and conclusions made by the primary judge, encountered significant difficulties due to the unavailability of a transcript of the proceedings. The central issue was whether the appellant's ability to effectively prosecute the appeal was prejudiced by the lack of a transcript, and if so, what remedy was appropriate. The Family Court had previously dismissed the appeal on the grounds that the appellant had not demonstrated how the alleged errors had caused a miscarriage of justice.

The legal issues before the court involved the role and importance of a transcript in appellate proceedings, particularly in family law cases where findings of fact are crucial. The court had to determine whether the absence of a transcript constituted a substantial impediment to the appellant's ability to effectively argue the appeal, and if so, what the appropriate remedy would be. The court considered authorities such as Harris v Caladine, CDJ v VAJ, and Allesch v Maunz, which emphasised the importance of a complete record for appellate review. The court also assessed the adequacy of the notes prepared by the appellant's solicitor as an alternative record.

The court concluded that the unavailability of the transcript did indeed prejudice the appellant's ability to effectively argue the appeal, particularly in relation to the grounds challenging the findings of fact. The court held that appellate courts must have regard to the record of the evidence given at trial, and the absence of a transcript in this case constituted a significant impediment. The notes prepared by the solicitor were found to be inadequate as an alternative record due to the lengthy delay and the complexity of the case. Consequently, the appeal was allowed, and the parenting proceedings were remitted for rehearing by a different judge. The court ordered that there be no order for costs of the appeal.